Tag Archives: Supreme Court

Post from the past: “Justice Janice Rogers Brown gets it right on the GHG endangerment finding”

I posted this on December 12, 1012….the USEPA GHG endangerment finding was unwarranted (and incorrect).

“USEPA has embarked on issuing a variety of regulations to control emission of greenhouse gases using the Clean Air Act (CAA). This flurry of activity results from an earlier Supreme Court ruling that upheld USEPA’s GHG endangerment finding under the CAA.  The endangement finding was a clear stretch of the imagination by the court. A legal challenge to GHG rules was filed in the US District Court of Appeals, DC Circuit, and a panel of judges upheld their legality. A petition was filed requesting that the entire court rule on the appeal, which was recently denied. In her desent, Justice Janice Rogers Brown provides a good explanation of why the Supreme Court erred in their ruling on the GHG endangerment finding, which indeed they did. The broad expanse of the term “pollutant” in that ruling is well-beyond the original context and intent of the Clean Air Act statute.

I have provided the full written dissent of Justice Brown below. As during the 1990s in litigation involving the Safe Drinking Water Act, the prevailing opinion explained by Sentelle provides political cover for a lawless agency (USEPA), rather than recognizing and honoring the rule of law as intended by the CAA. If congress intended GHG emissions to be regulated, congress could have explicitly enacted legislation to do so. (Click here for the full ruling.)


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The Supreme Court must correct prior ruling, remand USEPA’s GHG regulations

The idea that anything in air such as CO2 is an air pollutant to be regulated under the Clean Air Act is clearly erroneous. Regulation of CO2 was never intended under the CAA. Even though the court may have decided previously that USEPA has the discretion to regulate CO2 under the CAA, this does not mean that such regulation is justified. Using similar reasoning, does USEPA have the discretion to regulate frisbees and footballs. Are they air pollution as well?

The attempt by USEPA to regulated GHGs under statutes that clearly were never intended to address such substances is obviously flawed, except to those with political blindness. When there is no science to support regulation of CO2 in the first place, it is not appropriate for the Supreme Court to simply avoid the issued by giving deference to the agency. Even with discretion, the agency must provide a reasoned rationale and justify its regulations, which it has not done (and cannot do) for CO2. The Court should stay, or at minimum remand these rules.

Click here for news article.