In advance of Thursday’s expected announcement from the U.S. Environmental Protection Agency that carbon dioxide from automobiles is a threat to public health and welfare and, therefore, is subject to regulation under the Clean Air Act — the so-called “endangerment” finding — rumors are flyign around town that businesses may sue the agency.
This is a loser strategy that will accomplish nothing other than to make Beltway lawyers richer.
The Supreme Court ruled in Massachusetts v. EPA that EPA can regulate CO2 if it finds that it is a hazard to public health and welfare.
As long as the EPA is not “arbitrary and capricious” in deciding that CO2 is such a threat, the agency will win in federal court.
The “arbitrary and capricious” standard of the Administrative Procedures Act is a notoriously lax (i.e., pro-agency) standard. It’s really a non-standard that essentially allows federal agencies to get away with regulatory murder. As long as the EPA can point to some (any) rationale for CO2 being a threat — however ludicrous in the real world, even the UN reports — the agency will win.
An appeal to the current (and likely future) Supremes won’t succeed as the tie-breaking vote between the four conservative justices (Thomas, Scalia, Roberts, and Alito) and the four liberal justices (Stevens, Ginsburg, Souter and Breyer) is Anthony Kennedy — a pseudo-conservative who, enjoying swing-vote status, voted for Massachusetts (and against the Bush administration) in the earlier case.
Industry should instead fight back on a political level — the 2010 elections. A bill to block the EPA from acting on its finding should be introduced immediately. It should be made clear to any politician opposing such a bill that his job is at stake. The bill effort should be backed-up by CO2 TEA parties.
