Monday, April 2, 2007

Massachusetts v. EPA: A Hollow victory unless we do something about it

Some news sources seem to be touting Massachusetts v. EPA as a slap in the face of Bush's environmental policy, but the real result is that the EPA (under Bush's direction) can continue to avoid making serious inroads against global warming unless someone forces the EPA to do so.

I am grateful that the Supreme Court ruled that the EPA can regulate tailpipe emissions of greenhouse gases. I realize that such a ruling was by no means certain, but, at the same time, most Americans probably thought that the EPA was regulating tailpipe emissions all along. I realize that this is a naive view of administrative law, but if the EPA can't regulate tailpipe emissions what is the point of the EPA?

But far from some enormously helpful, pro-environment opinion, Massachusetts v. EPA actually does little to help the environment. Much of the case was focused on whether the EPA was required to regulate tailpipe emissions. The EPA argued that it had discretion to decide whether or not to regulate tailpipe emissions. The Supreme Court did not explicitly rule that the EPA had to regulate tailpipe emissions, instead it said the EPA had to re-evaluate its contention and to come up with a better (read: closer to the Clean Air Act) reason not to.

Basically the court declined the EPA to do what I see as its job! I can understand all of the legal reasons why the court did it, but it still leaves a bad taste in my mouth. It makes me wonder when some branch of government will finally make the EPA do something.

Who can make the EPA regulate tailpipe emissions now that the Supreme Court has declined to do so?
1) The President could do something, but don't hold your breath.
2) Perhaps the most interesting part of this case is that it allows States to challenge EPA decisions in court. Again, this at first seems really exciting, but if Massachusetts v. EPA is any indication, the ability of any state to force the EPA to be tough on environmental issues will probably be limited.
3) Ultimately, this case seems like a plea for us to elect Legislators who will actually force the EPA to take measures to counteract global warming.

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