Dec 202012

Opinion | Legal Planet commentary | National Law Journal | Law360 | The Volokh Conspiracy on petitions for rehearing | Coverage of the earlier decision

Brown, Kavanaugh dissent

A D.C. Circuit Court of Appeals en banc panel has rejected industry petitions seeking rehearing of the court's earlier decision upholding EPA's finding that greenhouse gases can be regulated under the Clean Air Act (Coalition for Responsible Regulation v. EPA, 09-1322, 12/20/12).

Chief Judge David B. Sentelle of the D.C. Circuit Court of Appeals

Chief Judge David B. Sentelle was joined by Circuit Judges David S. Tatel and Judith W. Rogers in writing for the court. The full panel also included Circuit Judges Karen LeCraft Henderson, Merrick Garland and Thomas B. Griffith (who agreed with the decision), and Circuit Judges Janice Rogers Brown and Brett M. Kavanaugh, who dissented.

Here are the first two paragraphs of the majority's statement:

SENTELLE, Chief Judge, ROGERS, Circuit Judge, and TATEL, Circuit Judge, concurring in the denials of rehearing en banc: In dissenting from the denials of rehearing en banc, Judge Brown primarily takes issue with EPA’s Endangerment Finding. But as she candidly acknowledges, see Dissenting Op. at 2 (Brown, J.), her quarrel is with the Supreme Court. In Massachusetts v. EPA, 549 U.S. 497 (2007), the Court expressly held that the Clean Air Act’s “sweeping definition of ‘air pollutant’ ” unambiguously includes greenhouse gases. See id. at 528–29. Moreover, in so holding, the Court expressly rejected many of the arguments her dissent now presses. In particular, it rebuffed EPA’s attempt to use “postenactment congressional actions and deliberations” to obscure “the meaning of an otherwise-unambiguous statute,” id. at 529, and found EPA’s reliance on FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000), “similarly misplaced,” Massachusetts v. EPA, 549 U.S. at 530. Seeking to revive the Brown & Williamson argument, Judge Brown suggests that the Court never considered the “far-reaching effects” of extending greenhouse gas regulation to stationary sources. See Dissenting Op. at 18 (Brown, J.). But this is inaccurate—the briefs before the Court explicitly raised the argument that interpreting “air pollutant” to include greenhouse gases could have tremendous consequences for stationary-source regulation. See, e.g., Brief of Respondent CO2 Litigation Group, Massachusetts v. EPA, 549 U.S. 497 (2007) (No. 05-1120), 2006 WL 3043971 at *19–*31.

To the extent Judge Brown attempts to bypass Massachusetts v. EPA by focusing on the statutory condition that air pollution “reasonably be anticipated to endanger public health or welfare,” 42 U.S.C. § 7521(a)(1) (emphasis added), her quarrel is not just with the Supreme Court, but also with EPA’s assessment of the science. Of course, we agree that the statute requires EPA to find a particular causal nexus between the pollutant and the harm in order to regulate. See Dissenting Op. at 9 (Brown, J.). But that is exactly what EPA did: it found that “greenhouse gases in the atmosphere may reasonably be anticipated both to endanger public health and to endanger public welfare.” Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, 74 Fed. Reg. 66,496, 66,497 (Dec. 15, 2009). And, as the panel opinion explains, EPA’s scientific judgment about the causal relationship between greenhouse gases and climate change is a scientific determination entitled to “an extreme degree of deference.” Coalition for Responsible Regulation v. EPA, 684 F.3d 102, 120 (D.C. Cir. 2012) (quoting American Farm Bureau Federation v. EPA, 559 F.3d 512, 519 (D.C. Cir. 2009)). The dissent's suggestion that EPA was somehow statutorily precluded from finding the requisite nexus between greenhouse gases and harm to public health and welfare, see Dissenting Op. at 10–11 (Brown, J.), is belied by the Supreme Court's decision to remand precisely this question. See Massachusetts v. EPA, 549 U.S. at 532–35.

They then proceeded to address Kavanaugh's dissent.

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