The EPA’s Day in Court

A number of states have joined with industry organizations to challenge new rules from the Environmental Protection Agency on the grounds that they run contrary to the Clean Air Act. Oral arguments began on February 28 before D.C.’s Court of Appeals.

Previous cases have not gone so well. In 2007, in Massachusetts vEPA, the Supreme Court affirmed the EPA’s authority to regulate carbon dioxide as a pollutant under the Clean Air Act. And last year, the Court unanimously threw out a lawsuit, American Electric Power Co. v. Connecticut, that was brought by eight states. In its decision, the court held that neither states nor private parties could bring a global-warming claim under the federal common-law theory of “public nuisance” because the EPA held authority over this issue. That decision leaves all such regulation solely in the hands of the EPA and threatens the right of plaintiffs even to appeal its decisions.

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