Posted by Jonathan Adler:
*Virginia Law Review In Brief* on *Mass. v. EPA*:
http://volokh.com/archives/archive_2007_05_20-2007_05_26.shtml#1179972462
The Virginia Law Review has just posted two essays evaluating the
Supreme Court's landmark environmental decision in Massachusetts v.
EPA for its InBrief online magazine, with a third to follow shortly.
In [1]the first essay, Virginia's Jonathan Cannon, who served as
General Counsel of the Environmental Protection Agency during the
Clinton Administration, argues the decision was an "enormous, if
narrow, victory for environmentalists." Cannon writes:
he holding defines a major new area of responsibility for EPA and
requires the Agency to review this and other requests for
regulation of greenhouse gas emissions under limits set by the
Court. The Court�s opinion also reflects sympathy with
environmentalist beliefs and values to an extent rarely, if ever,
seen in the Court�s environmental cases. This cultural or symbolic
significance of Mass. v. EPA is, for me, its most remarkable
feature . . .
In [2]the second essay, administrative law guru Ronald Cass argues the
decision could dramatically rework many aspects of administrative law,
and not for the better. Writes Cass:
In their eagerness to promote government action to address global
warming, the Justices stretch, twist, and torture administrative
law doctrines to avoid the inconvenient truth that this is not a
matter on which judges have any real role to play.
My own contribution to the Virginia InBrief discussion is due to be
posted on the site shortly. In the meantime, a copy is available
[3]here on SSRN. The abstract follows:
The surprise in Massachusetts v. EPA was not that it was a close,
hotly contested case. Rather, the surprise was the facility and
ease with which the Court majority dispatched opposing arguments
and redefined prior precedents. Not content to widen doctrines on
the margins, Justice Stevens' majority opinion blazed a new path
through the law of standing and unearthed newfound regulatory
authority for the United States Environmental Protection Agency.
Under the Court's new interpretation, the Clean Air Act (�CAA� or
�the Act�) provides EPA with roving authority, if not
responsibility, to regulate any substance capable of causing or
contributing to environmental harm in the atmosphere. The federal
government did much to facilitate this course, as the Environmental
Protection Agency has been anything but a reluctant regulator, and
as such the present administration was not the most compelling
advocate for its own cause. Now that EPA has authority to regulate
greenhouse gases, regulatory controls on motor vehicles are sure to
follow, as will regulations on other emission sources. In time,
however, Massachusetts v. EPA may come to stand for more than the
simple proposition that Congress delegated authority to regulate
greenhouse gases under the Clean Air Act. It may herald in a new
era of state-sponsored litigation, environmental standing, and
statutory interpretation - and yet still do little to cool down a
warming planet.
References
1. http://virginialawreview.org/inbrief.php?s=inbrief&p=2007/05/21/cannon
2. http://virginialawreview.org/inbrief.php?s=inbrief&p=2007/05/21/cass
3. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=988402
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
