Cross-posted at WLF’s Forbes.com contributor page
The Environmental Protection Agency (EPA) has had a pretty rough 2012 in federal court. A number of lower federal courts (we detail here, here, and here) reined in the agency’s efforts to expand its authority, and in March, the Supreme Court in Sackett v. EPA unanimously held that the Clean Water Act doesn’t preclude judicial review of EPA compliance orders.
Contrary to this trend, the U.S. Court of Appeals for the D.C. Circuit gave EPA some holiday cheer on December 20, denying a rehearing en banc request in Coalition for Responsible Regulation v. EPA. In June, a three-judge panel held that EPA could regulate motor vehicle and stationary sources of six “greenhouse gases” (GHGs) under the Clean Air Act (CAA). Last Thursday’s opinions reflected a 5-2 vote against en banc rehearing, with a brief concurring statement by the three judges who issued the June ruling and two lengthy dissents from Judges Brown and Kavanaugh.
The dissents made two points: 1) The Supreme Court’s 2007, 5-4 Massachusetts v. EPA ruling, on which the June opinion relies, was wrongly decided; and 2) Mass. v. EPA doesn’t apply to regulation of GHGs from stationary sources because the definition of “air pollution” the Supreme Court applied is intertwined with the context of the case — motor vehicles or “tailpipe” emission. Continue reading “A Rough Year in Court for EPA Ends on an Undeserved Upbeat Note”