The Corner

Did the EPA Have a Choice?

Many folks on the right, including Jonah, have criticized the EPA’s decision to issue an endangerment finding as some sort of power grab.  Implicit in this argument is the idea that the EPA had a meaningful choice whether to conclude that the emission of greenhouse gases causes or contributes to air pollution that can be reasonably anticipated to endanger the public health and welfare (the relevant legal standard under Section 202).  I reject this premise, and I don’t believe one has to accept apocalyptic climate change scenarios to reach this conclusion.  For one thing, the standard is somewhat precautionary — the language empowers the EPA to regulate despite the existence of uncertainty.  For another, it would be very difficult for the EPA to justify a contrary conclusion under current law.

The Supreme Court’s decision in Massachsuetts v. EPA held that greenhouse gases were air pollutants under the Clean Air Act subject to EPA regulation.  This means that the only question for the EPA is whether such GHG emissions meet the standard above.  Whether or not one believes greenhouse gases pose a serious threat, the EPA does not get to make this decision on clean slate.  For years the EPA has been stating that climate change is a serious problem.  Indeed, the Bush Adminsitration, at the very same time it declined to regulate greenhouse gases under the Clean Air Act, asserted the Agency’s belief that climate change is a serious problem.  Therefore, for the EPA to not make an endangerment finding, not only would it have to argue that the relevant evidence does not support the conclusion that greenhouse gases could be “reasonably anticipated” to threaten public health and welfare, but also that the EPA’s many prior pronouncements about the threat of climate change over multiple adminsitrations were wrong.  Even though courts are quite deferential to agency interpretations of scientific evidence, this would be a difficult case to make.  Courts are more demanding when an agency reverses course, and the EPA would have an awful lot of contrary claims to explain away.  Thus, even if the Obama EPA had been disinclined to make an endangerment finding, I think such a finding could have been compelled in court.

By all means conservatives should object to the regulatory nightmare that the control of greenhouse gas emissions under the Clean Air Act will create.  But this is a result of the Supreme Court’s reinterpretation of the Clean Air Act in Massachusetts v. EPA and the failure of Congress to amend the law or enact an alternative, not the Obama Administration.

Jonathan H. Adler — Jonathan H. Adler teaches courses in environmental, administrative, and constitutional law at the Case Western Reserve University School of Law.

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