Prevailing Dissenters in Massachusetts v. EPA to Decide New Greenhouse Gas Challenge

The D.C. Circuit announced Wednesday that the challenge to the EPA’s new greenhouse gas rules will be heard by Chief Judge David B. Sentelle and Circuit Judges Judith W. Rogers and David S. Tatel in February. In the consolidated cases, several industrial and state petitioners ask the Court to vacate the EPA’s finding that greenhouse gases, including carbon dioxide, pose a danger to public health and are therefore subject to regulation as pollutants, and the agency’s various regulations pertaining to carbon dioxide emissions.

The Supreme Court sided with Judge Tatel’s dissent in Massachusetts v. EPA, 415 F.3d 50 (D.C. Cir. 2005), when it held that states have standing to challenge the agency’s failure to promulgate greenhouse gas regulations. Judge Rogers also joined Judge Tatel in dissenting from the denial of rehearing en banc before the Supreme Court vindicated their position.

At least for Judge Tatel, approval of the EPA’s endangerment finding appears to be a foregone conclusion. In his panel dissent in 2005, Judge Tatel extensively quoted scientific findings about the dangers of global warming and its connection to greenhouse gases, opining that the “exceedingly broad language [of the Clean Air Act] plainly covers [greenhouse gases] emitted from motor vehicles: they are ‘physical [and] chemical . . . substance[s] or matter . . . emitted into . . . the ambient air.”  ”I have grave difficulty,” wrote Judge Tatel, “seeing how EPA . . . could possibly fail to conclude that global warming ‘may reasonably be anticipated to endanger public health or welfare.’ “

According to the scheduling order, “[t]he court anticipates that argument will be scheduled over two days,” and advises counsel to plan to be in court on February 28 and 29, 2012.

Nat’l Association of Manufacturers v. EPA, No. 10-1044 (to be argued Feb. 28, 2012 before Sentelle, C.J., & Rogers & Tatel, JJ.)

(Hat Tip: Howard Bashman at How Appealing)