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This week the Environmental Protection Agency took the momentous—and disastrous—step of repealing the government’s “endangerment finding” that greenhouse gases “harm public health or welfare,” which is a prerequisite for regulating these pollutants under the Clean Air Act. The text of the Clean Air Act and robust congressional debates at the time of its enactment bely EPA’s central justification for repealing the endangerment finding and the greenhouse gas emission standards for motor vehicles—that the Clean Air Act of 1970 was concerned only with local and regional pollutants. It wasn’t. But EPA’s repeal contains even more flaws. In particular, the agency relies on three key Supreme Court climate change cases to support its action but mischaracterizes each of them.

Most significantly, EPA mangles Massachusetts v. EPA, the 2007 case in which the Supreme Court decided that greenhouse gases are “air pollutants” for the purposes of the Clean Air Act. According to EPA, that case involved an interpretation of the statute’s general definition of “air pollutant” and was not a decision specific to the law’s section 202(a)(1), which governs the regulation of motor-vehicle emissions. Thus, EPA contends that “Massachusetts did not consider or have reason to interpret the scope of the EPA’s authority” under the portion of the Clean Air act releveant to vehicle emissions.

Dahlia Lithwick and Mark Joseph Stern

It Sure Looks Like This Supreme Court Justice Is Getting Ready to Retire

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