Today the D.C. Circuit denied rehearing en banc in the Greenhouse Gas case. No surprise there. The panel decision upheld the EPA’s finding that carbon dioxide is a pollutant and upheld the agency’s regulation of CO2 emissions. The original panelists signed Chief Judge Sentelle’s opinion concurring in the denial of rehearing, and Judges Brown and Kavanaugh each dissented. Today’s dissenters are always worth a read, and these offerings are no exception.
Judge Brown begins with a bit of autobiography:
In the summer of 1974, while waiting to start classes at UCLA, I was lucky enough to obtain a summer job house sitting in the pleasant, upscale neighborhood of Pasadena. Known mostly for its Rose Parade and Rose Bowl, Pasadena is one of the more scenic exurbs of Los Angeles. I inhabited a sparsely furnished, modest-but-pricey bungalow set among the lush landscape typical of southern California. This is a place where Birds of Paradise grow ten feet tall and the magenta blossoms of Bougainvillea fall like lavish draperies from redwood garden trellises. After staying in the house more than a month and spending a restless night listening to the agitated thrashings of the jacaranda trees in a fitful wind, I stumbled bleary-eyed into the kitchen, looked out the window, and stopped — utterly dumbfounded. There — looking like it was but a few feet beyond the back fence — stood a mountain. Not a foothill. Not an unobtrusive mesa. A mountain! Closer inspection revealed not a lone majestic peak, but a whole mountain range I later identified as the San Gabriels. In those days, the air in the Los Angeles basin was so thick with smog that a mountain, or even a nearby mountain range, could simply disappear.
Although the Los Angeles basin was among the most notorious examples of the phenomenon, it was by no means unique and certainly not the worst. It was this crisis of ambient air quality that precipitated the enactment of the Clean Air Act (CAA). But as the CAA’s history, language, and structure make clear, Congress never intended the Act to serve as an environmental cure-all. It was targeted legislation designed to remedy a particular wrong: the harmful direct effects of poisoned air on human beings and their local environs. This is what Congress understood as “air pollution which may reasonably be anticipated to endanger public health” in the tailpipe emissions provision, 42 U.S.C. § 7521(a)(1). The Supreme Court in Massachusetts v. EPA, 549 U.S. 497 (2007), however, concluded otherwise. In dicta too suggestive to ignore, the Court implicitly assumed that climate change could provide the basis for an endangerment finding in the tailpipe context. Bound as I am by Massachusetts, I reluctantly concur with the Panel’s determination that EPA may regulate GHGs in tailpipe emissions. But I do not choose to go quietly.
Judge Brown’s dissent ends with a wink at the per curiam panel opinion’s quotation of Schoolhouse Rock, but she finds another song more apt:
In denying rehearing en banc, this Court has read Massachusetts to its illogical ends and it is American industry that will have to pay. That this Court did so is unsurprising, but certainly not fated. Massachusetts does not compel this outcome for the [Prevention of Significant Deterioration] and Title V provisions. Had this Court interrogated its own assumptions and yielded not to Massachusetts’s telos but sound constitutional principles, it would have found that the matter properly belongs before Congress, not courts or agencies. As Schoolhouse Rock long ago explained:
Ring one, Executive,
Two is Legislative, that’s Congress.
Ring three, Judiciary.
See it’s kind of like my circus, circus.
And what a circus it is.