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Supreme Court RoundUP: Pivotal Cases for the Clean Air Act

How greenhouse gases and Best Available Control Technology could shape the regulatory landscape—and the environment.

Fortnightly Magazine - December 2006

Id. § 7607(b)(2).

42. Brief for the United States as Respondent Supporting Petitioners at 19, 31, Envtl. Def. v. Duke Energy Corp ., No. 05-848.

43. Id. at 32.

44. Brief for Respondent Duke Energy Corp., Envtl. Def. v. Duke Energy Corp ., No. 05-848 (Sept. 15, 2006), 2006 WL 2689784, at *25-26.

45. Id. at *28.

46. Id. at *29-30.

47. Id. at *29.

48. Id. 

49. Id. (citing Adamo Wrecking Co. v. United States , 434 U.S. 275, 284 (1978); Abbott Labs. v. Gardner , 387 U.S. 136, 140 (1967)).

50. Control of Emissions from New Highway Vehicles and Engines, 68 Fed. Reg. 52,922, 52,923 (Sept. 8, 2003) (notice of denial of petition for
rulemaking).

51. Section 202(a)(1) provides that the EPA Administrator “shall by regulation prescribe . . . in accordance with the provisions of [Section 202], standards applicable to the emission of any air pollutant from any class or classes of new motor vehicle . . . which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.”
42 U.S.C. § 7521(a)(1).

52. Id. 

53. 68 Fed. Reg. 52,925-29.

54. Id. at 52,929.

55. Id. (emphasis added).

56. Id. at 52,930.

57. Massachusetts v. EPA , 415 F.3d 50 (D.C. Cir. 2005).

58. Id. at 55.

59. See, e.g., Morrison v. Olson , 487 U.S. 654, 677 (1988) (citing Muskrat v. United States , 219 U.S. 346, 356 (1918)).

60. Id. at 55-56.

61. Id. 

62. 541 F.2d 1 (D.C. Cir. 1976).

63. Massachusetts, 415 F.3d at 57-58 (citing Ethyl Corp ., 541 F.2d at 20, 26). 

64. Id. at 58.

65. Judge Sentelle concurred in the judgment but dissented in part. He found that EPA correctly asserted that petitioners lacked standing because they alleged only a “generalized public harm,” id. at 59, posed by EPA’s denial rather than a “distinct risk to a particularized interest” of petitioners, id. at 60. Judge Tatel dissented, having found that at least one of the petitioners—the Commonwealth of Massachusetts—satisfied the standing requirement, and that to reach the merits, the court need only determine that one petitioner had standing. Id. at 64. Tatel concluded that the CAA “plainly cover[ed] GHGs emitted from motor vehicles,” id. at 67, and that EPA in its denial “failed to provide a statutorily-based justification for refusing to make an endangerment finding,” id. at 80-82. 

66. Petition for Writ of Certiorari at 4, 12, Massachusetts v. EPA , No. 05-1120.

67. Massachusetts v. EPA , 126 S. Ct. 2960 (2006); see also United States Supreme Court Docket, No. 05-1120, available at http://www.supremecourtus.gov/docket/05-1120.htm (last visited Sept. 26, 2006).

68. Brief for the Petitioners, Massachusetts v. EPA , No. 05-1120 (Aug. 31, 2006), 2006 WL 2563378.

69. Id. at 11 (citing 42 U.S.C. § 7521(a)(1)).

70. Id. at 35-36.

71. Id. at 38.

72. Id. at 39.

73. Id. at 39-40. Specifically, petitioners argue that EPA’s concern about a “piecemeal approach” is obviated by the fact that Section 202(a)(1) “directs the EPA to regulate .

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