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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

to regulate. 60

The D.C. Circuit then “assume[d] arguendo that EPA [had] statutory authority to regulate [GHGs] from new motor vehicles” and considered only whether EPA “properly declined to exercise that authority.” 61 The court, relying on Ethyl Corp. v. EPA ,62 explained that the EPA administrator has considerable discretion to make a judgment about whether to regulate, and his decision whether or not to do so may be based on scientific evidence as well as policy judgments. 63 The court concluded that EPA’s analysis, as articulated in the notice of denial, was “entirely consistent with” Ethyl Corp. and, therefore, EPA’s denial was proper. 64, 65

The Supreme Court’s Review

On March 2, 2006, the petitioning states sought Supreme Court review, arguing that the decision of the D.C. Circuit was “an extreme departure from [the Supreme Court’s] precedents on statutory interpretation,” since EPA “rewrote [Section 202(a)(1) of the CAA] to justify its decision.” 66 The court granted review with respect to two questions: (1) whether the EPA administrator may decline to issue emission standards for motor vehicles based on policy considerations not enumerated in Section 202(a)(1) of the CAA; and (2) whether the EPA administrator has authority to regulate carbon dioxide and other air pollutants associated with climate change under Section 202(a)(1) of the CAA. 67 The D.C. Circuit had not reached or addressed the second question.

Climate-Change Authority Issues

In support of their claim that the EPA administrator is required to issue emission standards for motor vehicles, the states set fourth three arguments. 68 First, they argue that the only relevant factor under section 202(a)(1) is whether air pollution from motor vehicles “may reasonably be anticipated to endanger the public health or welfare.” 69 Petitioners argue that Congress intended for any endangerment to trigger regulation under the CAA, as evidenced by the fact that, in numerous other provisions of the CAA, Congress “carefully specified which factors are relevant, and which are not, to various agency decisions under the [CAA].” 70 EPA and the D.C. Circuit, the states argue, “strayed from this well-marked path” by “invok[ing] a mélange of factors not mentioned” in section 202(a)(1) as the basis for EPA’s decision not to regulate. 71 Petitioners next argue that, even if section 202(a)(1) “did not so plainly rule out consideration of factors other than endangerment in the initial decision whether to regulate emissions,” the three policy judgments cited by EPA in declining to regulate GHGs were either irrelevant under section 202(a)(1) or ignored the statutory endangerment standard.” 72 According to the states, two of these judgments—that regulation would “result in an inefficient, piecemeal approach” to addressing climate change, and that foreign policy issues were implicated because reduction of GHGs in the United States might be offset by increases in GHGs abroad—were overridden by the language of the CAA. 73, 74 Finally, the petitioning states argue that the D.C. Circuit misconstrued section 202(a)(1)’s reference to the administrator’s judgment. 75 They argue that the phrase “in his judgment” simply emphasizes that the “decision-making authority under Section 202 is lodged in the administrator of

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