Maybe the calculation is simply that the Supreme Court would be more likely to act on this advice than to overturn the appeals court’s decision.
However, consider what would happen if the Supreme Court were to rule that greenhouse gas regulation is a political question. Industry would no longer face the threat of interminable litigation, from a potentially limitless pool of plaintiffs, in which multiple courts, acting without benefit of statutory guidance, improvise remedies — both injunctive relief and damage awards — as they see fit. Thus, industry and pro-energy lawmakers would no longer view EPA regulation of greenhouse gases as the lesser of two evils. They could then challenge EPA regulation without fear of ending up with something even worse.
The Obama brief plainly presents EPA regulation as a shield from the chaos of CO2 nuisance litigation run amok:
The court of appeals held that plaintiffs’ federal common-law actions for public nuisance had not been displaced by the CAA [Clean Air Act] because “EPA does not currently regulate carbon dioxide under the CAA,” and does not “regulate such emissions from stationary sources.” Those predicates for the court of appeals’ analysis are no longer true. In the 11 months since the court issued its decision, EPA has taken several affirmative steps to make carbon dioxide emissions “subject to regulation” under the CAA as of January 2, 2011. Thus, even assuming the court’s decision was correct when it was issued, it is now clear, in light of intervening developments, that any federal common-law cause of action against petitioners and TVA for their emissions has been displaced.
The brief continues:
As the court of appeals recognized, federal common law is “subject to the paramount authority of Congress,” which means that a “previously available federal common law action” will be “displaced” whenever a “scheme established by Congress addresses the problem.” Accordingly, federal common law is displaced when an administrative agency takes regulatory action, under the authority of a comprehensive statutory program, to address the particular issue raised in a putative common-law cause of action.
Of course, the foregoing analysis assumes that Congress intended the CAA to be a statutory scheme for regulating greenhouse gases — exactly what opponents of EPA’s shocking power grab deny. The point, however, is that the Obama administration is attempting to manage rather than eliminate the threat of litigation chaos. The price we must pay for such “protection” — not spelled out but clear enough from the terms of Team Obama’s argument — is support for (or at least acceptance of) EPA’s Court-awarded authority to Kyotoize the economy.
My unsolicited advice to freedom’s friends in Congress and industry is to fight both fronts of this war: (1) Insist that making climate policy is a prerogative of politically accountable elected officials and thus beyond the competence of both judges and EPA bureaucrats; and, (2) challenge EPA’s endangerment rule in light of the “absurd results” to which it has led.
NAAQS: A Ticking Time Bomb
Industry types willing to accept EPA regulation as the lesser evil should consider what the U.S. business climate will be like once the agency gets around to establishing national ambient air quality standards (NAAQS) for greenhouse gases.
Some may think EPA would never go to such extremes. Then how come the Obama brief lists CAA Section 108 — the trigger for an NAAQS rulemaking — as one of the authorities available to EPA for regulating greenhouse gases? The brief also mentions Section 202 (motor vehicle standards), Section 165 (prevention of significant deterioration preconstruction permitting), Section 111 (new source performance standards), and Title V (operating permits) as applicable CAA authorities. No surprise there. EPA has either issued or is developing rules to regulate greenhouse gases under those provisions. However, sandwiched between the brief’s description of Section 202 and Section 111, we find this observation, which comes as a complete surprise:
Section 108 of the CAA also provides EPA with a mechanism for listing pollutants that “endanger public health or welfare” and meet certain other criteria. When an air pollutant is listed, the Act requires States to regulate emissions to prevent pollution from exceeding EPA standards.
If EPA would never issue NAAQS for greenhouse gases, then why mention Section 108 in a brief intended to prove that CAA regulation of greenhouse gases “displaces” federal common-law injury claims? Why not just discuss the authorities everybody knows EPA is currently using or plans to use?
Including NAAQS as a regulatory option in a brief to the Supreme Court is worrisome, especially given the aggressive push warmists are making on this front. The Center for Biological Diversity (CBD), among others, petitioned EPA more than a year ago to establish NAAQS for CO2 at 350 parts per million and for other greenhouse gases at pre-industrial concentrations. Even a global depression lasting several decades would not be enough to bring global CO2 concentrations down to 350 ppm. Yet, under the CAA, states must attain primary (health-based) NAAQS within five or at most 10 years.
Logically, EPA has already satisfied the substantive criteria for listing greenhouse gases as air pollutants under Section 108. NAAQS are pollution concentration standards specifying how many parts per million (or billion) of a pollutant are permissible in the ambient air. EPA’s Endangerment Rule (p. 66516) states that, “elevated concentration of greenhouse gases in the atmosphere may reasonably be anticipated to endanger public health and to endanger public welfare of current and future generations.” By “elevated concentration,” EPA clearly means elevated above pre-industrial levels. Inescapable implication: EPA has a duty under Section 108 to establish NAAQS for greenhouse gases set below current concentrations — just as CBD and its allies demand.
The only real protection for America’s economic future is for Congress to take back what activist judges and bureaucrats have purloined: the authority to decide how — and, more importantly, whether — greenhouse gases shall be regulated.