The Corner

Re: Legislative Trojan Horse

Conservatives should not kid themselves. Contra Hans A. von Spakovsky and Robert Gordon, the various legal challenges to EPA’s endangerment finding do not have “reasonable prospects of prevailing.” The statutory threshold for the finding is exceedingly deferential. So long as the EPA can show that climate change can “reasonably be anticipated” to have some negative effects — not catastrophic effects, not substantial net negative effects, and not even negative effects confined to humans — then the EPA wins.  The agency will only lose in Court if opponents prove it violated relevant procedural rules. In other words, the EPA could lose on process, but won’t lose on the merits. This doesn’t justify backing the Carper-Casey legislation, but it does counsel conservatives to stop thinking the courts will save us from the horrors of EPA greenhouse gas regulation. Legislative action is the only fix.

Jonathan H. Adler — Mr. Adler is an NRO contributing editor and the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Marijuana Federalism: Uncle Sam and Mary Jane.


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