Since I already violated my rule against speculating on the outcome of a case based on oral argument, I might as well do it again. I have always said that EPA’s endangerment finding would survive judicial review and that conclusion seems only more likely to prove correct following yesterday’s oral argument before the D.C. Circuit Court of Appeals.
Both the Daily Environment Report and GreenWire noted in their reporting on the argument that the groups challenging the rule emphasized that EPA had not considered the policy implications of making the endangerment finding. Of course. Precisely. That’s because the Clean Air Act itself divorces the endangerment finding from its policy implications. If there were any doubt about that, Massachusetts to EPA would seem to have put such questions to rest.
Judges Tatel and Sentelle both seemed to understand this point. Judge Tatel apparently felt compelled to remind the petitioners that the Court of Appeals is bound by Massachusetts v. EPA. Judge Sentelle said that:
Sometimes in reading the petitioners briefs, I got the impression that Massachusetts had not been decided.
To which, the petitioners said “uh-oh”.
There are a lot of issues in these cases. EPA could lose parts of some of the rules under challenge. The Tailoring Rule in particular still seems on thin ice to me – though I don’t know what alternatives EPA really had (and all heck will certainly break loose if the endangerment finding is affirmed but the Tailoring Rule is overturned). Nonetheless, the endangerment finding itself seems compelled by the plain language of the CAA and the decision in Massachusetts v. EPA, unless EPA’s scientific conclusion is arbitrary and capricious – and it ain’t, by a long mile.