Massachusetts v. EPA

And in the absence of congressional statute, federal common law is what governed.

But now we have the Clean Air Act, and Massachusetts v. EPA interpreted 7411 to say that the EPA is the one that has the authority to regulate greenhouse gas emissions.

So to the extent there is a national rule, Congress has given it to the EPA to set it.

Now, I think where I would quibble with you is about where the state law comes in.

And the Trump administration is essentially arguing as much in a couple of other cases.

So that's why I think ruling purely based on the AEP precedent would open up a can of worms and would be a little problematic, especially if the Supreme Court takes up another case in a couple of years to revisit Massachusetts v. EPA.

Now, you raise another avenue that they could go, and I think this is probably the more compelling argument, is that the framers of the Constitution devised it such that one state could not control activity outside of its borders or that wholly occurs outside of its borders.

And that is essentially what Boulder County and other states and localities that are suing these companies are trying to do.

What was that?

Yeah, it was called the – in 2008, the Obama EPA – well, actually, the Supreme Court said in the Massachusetts v. EPA ruling that CO2 could be listed as a pollutant.

And the next year, 2009, the Obama EPA started that process.

They said, well, CO2 is a pollutant, and we're going to regulate it, and might have they.

So that's a possibility that there would be a delay through that.

I think one thing that a lot of us are focused on is the fact that it was several years ago that the U.S. Supreme Court in Massachusetts v. EPA made a decision that, indeed, EPA is authorized to regulate greenhouse gases and needed to do so.

and that spurred EPA into the process of making that happen.

Supreme Court now, I think industry may hope, might come up with a different decision.

Massachusetts sued the EPA for refusing to regulate greenhouse gases, and the standing fight was the hard part of the case.

In Massachusetts v. EPA in 2007, the court said the state was entitled to what it called special solicitude in the standing analysis.

So treating the state as a different kind of plaintiff than a person or a company, that seems to have real doctrinal consequences.

Yes.

And the doctrine has been wrestling with whether that survives.

Right.

Lower courts have read it narrowly, and whether special solicitude survives at full strength is contested.

So between Article 3, the zone of interest, associational standing, and the special solicitude for states, the rules pull in different directions.

In another, much more immediate way, Zeldin is wrong.

According to Massachusetts v. EPA in 2007, greenhouse gases do fit the Clean Air Act's definition of air pollutants.

That means the opinion of the Supreme Court is that the letter of the law here explicitly allows the EPA to regulate greenhouse gases under the Clean Air Act, thus the agency's 2009 endangerment finding.

You may also remember that Zeldin has already rescinded the endangerment finding.

So all of this is likely to be challenged in court, litigated all the way up to the Supreme Court.

And the Supreme Court did say in Massachusetts v. EPA that carbon emissions can be regulated as a pollutant under the Clean Air Act.

And so what it would take to sort of remove that from the authority of the federal government would have to be, I think, a revisitation of Massachusetts versus EPA by the Supreme Court.

And the Supreme Court is different from the Massachusetts versus EPA review.