Massachusetts v. EPA should be reversed… and there is now evidence to do so.
The National Journal reports in “Why Carbon Is So Hard to Regulate“:
And he has the legal authority to do it. Under the terms of a sweeping 1990 law, the Clean Air Act Amendments, EPA must regulate harmful pollutants that endanger human health. And in 2009 [sic, should read 2007], prodded by a Supreme Court ruling, the agency designated carbon dioxide a “harmful pollutant,” adding it to the ranks of other toxins such as mercury, lead, soot, and sulfur dioxide. So the law now says Obama can—nay, must—regulate carbon. But here’s the tricky part: The law doesn’t quite say how to do it.
Even its original authors concede as much. “We were not focused on climate,” said Phil Barnett, chief of staff to Rep. Henry Waxman, D-Calif., one of the chief authors of the 1990 statute. “We were focused on these other pollutants,” the environmental problems of the ’80s, such as acid rain, urban smog, and the hole in the ozone layer. Carbon wasn’t a big concern at the time, and so no title of the law addresses global warming or how to regulate the gases that cause it. [Emphasis added]
But in that 2007 case, Massachusetts v. EPA, the Supreme Court held:
Even if postenactment legislative history could shed light on the meaning of an otherwise-unambiguous statute, EPA identifies nothing suggesting that Congress meant to curtail EPA’s power to treat greenhouse gases as air pollutants.
Because the legislative history argued by the EPA didn’t indicate that Congress had ignored carbon and EPA couldn’t/didn’t show that Congress didn’t intend to regulate CO2, the Court decided (i.e., rewrote the law) that CO2 could be considered a pollutant subject to EPA regulation. The rest is history.
That has now changed.
We now know for certain from a key actor that Congress did not intend to regulate CO2 under the Clean Air Act. It was even concerned with CO2 at the time. The Court rewrote the law in its 5-4 decision to include CO2.
Perhaps if the Supreme Court decides to take up the appeal recently filed over EPA’s greenhouse gas rules, the Supremes can right this wrong.