Starting in late 2009, the Environmental Protection Agency began issuing a series of four rules designed to regulate greenhouse gas (“GHG”) emissions from the national economy, including both cars (mobile sources) and factories and other stationary sources. The costs and implications of these rules are enormous and some have argued enormously increase EPA’s powers, particularly because virtually all economic activities involve the combustion of fuel, releasing GHGs. A collection of States, businesses, and public interest groups challenged the GHG rules, and those challenges were consolidated for review by the D.C. Circuit. The panel in the case held that they were constrained to reject the challenges, largely on the basis of Massachusetts v. EPA, in which the Supreme Court in 2007 held that GHGs were “air pollutants” within the meaning of the Clean Air Act but otherwise remanded EPA’s denial of a rulemaking petition concerning GHG emissions from cars. Recently, the full D.C. Circuit also denied en banc review, over two dissents penned by Judges Brown and Kavanaugh. Judge Brown called for the Supreme Court to recognize that Massachusetts v. EPA should be reconsidered with an eye to reversal, with Judge Kavanaugh arguing that EPA’s odd manner of interpreting the Clean Air Act in its GHG rules expanded the agency’s sphere of authority and raised serious separation of powers questions. Our panelists consider the litigation and its future course on this previously recorded conference call.
- Mr. Jeffrey B. Clark, Partner, Kirkland & Ellis LLP
- Mr. Sean H. Donahue, Partner and Attorney, Donahue & Goldberg, LLP
- Moderator: Mr. Marlo Lewis, Jr., Senior Fellow, Center for Energy and Environment, Competitive Enterprise Institute
- Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society