I already violated my rule against speculating on the outcome
of a case based on oral argument, I might as well do it again.
I have always said that EPA's endangerment finding would
survive judicial review and that conclusion seems only more likely
to prove correct following yesterday's oral argument before the
D.C. Circuit Court of Appeals.
Both the Daily Environment Report and GreenWire noted in their reporting on the
argument that the groups challenging the rule emphasized that EPA
had not considered the policy implications of making the
endangerment finding. Of
course. Precisely. That's because the Clean Air Act
itself divorces the endangerment finding from its policy
implications. If there were any doubt about that, Massachusetts to EPA would seem to
have put such questions to rest.
Judges Tatel and Sentelle both seemed to understand this
point. Judge Tatel apparently felt compelled to remind the
petitioners that the Court of Appeals is bound by Massachusetts
v. EPA. Judge Sentelle said that:
"Sometimes in reading the petitioners briefs, I got the
impression that Massachusetts had not been
To which, the petitioners said "uh-oh".
There are a lot of issues in these cases. EPA could lose
parts of some of the rules under challenge. The Tailoring Rule
in particular still seems on thin ice to me – though I
don't know what alternatives EPA really had (and all heck will
certainly break loose if the endangerment finding is affirmed but
the Tailoring Rule is overturned). Nonetheless, the
endangerment finding itself seems compelled by the plain language
of the CAA and the decision in Massachusetts v. EPA,
unless EPA's scientific conclusion is arbitrary and capricious
– and it ain't, by a long mile.
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Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
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