Attorney Peter Glaser’s “Morning After” Reflections on the D.C. Circuit Court GHG Decision

Fossil fuels constitute 85 percent of the energy Americans use.  Hence, EPA authority to regulate carbon dioxide is essentially the authority to regulate everything.

The danger in EPA’s authority to regulate GHGs is amplified by the fact that EPA’s source of regulatory authority is the CAA.  To trigger regulation under the CAA, EPA must make a finding that GHGs “may reasonably be anticipated to cause or contribute” to the endangerment of public health or welfare.  We learned again from yesterday’s decision what a permissive standard this is.  At oral argument, one of Judge Sentelle’s first statements to petitioners’ counsel was something to the effect of “I hope you’re not going to ask us to make a judgment on the science.”  Personally, I am a climate skeptic – I have read through the climategate emails and have been appalled.  But the courts continue to show reluctance to truly engage EPA’s science findings (or even to allocate sufficient words to adequately brief these highly technical issues).