Saturday, April 2 is the 15th anniversary of the Supreme Court’s 2007 decision in Massachusetts v. EPA. It is now settled law that CO2 and other greenhouse gasses are “pollutants” under the Clean Air Act, and the Court has twice affirmed that holding.*
Still, not everyone has gotten the memo. On the eve of the Court’s February 28 argument in West Virginia v. EPA (dealing specifically with CO2 emissions from power plants) the Wall Street Journal continued its 15-year vendetta against Massachusetts with a typically alarmist piece about greenhouse gas regulation threatening the end of civilization as we know it, including its perennial call for the Court to “revisit” (read “overturn”) Massachusetts.
This latest manifestation of the Journal’s obsession is bizarre because the West Virginia plaintiffs never asked the Court to revisit Massachusetts. In their opening brief, West Virginia, Alabama, Alaska, Arkansas, Georgia, Indiana, Kansas, Louisiana, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Texas and Utah mentioned Massachusetts only three times in passing. They mentioned it just twice in their reply brief, where they said that concerns that the Court might overturn Massachusetts were unfounded because that decision was not at issue in the case.
The Journal’s argument has always been that Congress did not include greenhouse gasses within the Clean Air Act’s definition of a pollutant, starting from the day after Massachusetts was decided (“the majority took the widest view that the definition includes any ‘physical, chemical substance that goes in the air”) up to the present (“greenhouse gasses aren’t pollutants as defined in the Clean Air Act”)
When all else fails, it pays to read the statute. The Clean Air Act defines an “air pollutant” as: “any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive (including source material, special nuclear material, and byproduct material) substance or matter which is emitted into or otherwise enters the ambient air.”
Unfortunately, the Journal’s editorial board has never explained (1) how using the actual words in the statute is giving it “the widest reading,” and, (2) in any event, where that definition excludes greenhouse gasses from “any physical, chemical, biological, radioactive (including source material, special nuclear material, and byproduct material) substance or matter which is emitted into or otherwise enters the ambient air.”
Deeming virtually anything an air pollutant makes perfect sense, because (1) we have often discovered that lots of things we didn’t think of as air pollutants (like asbestos) are harmful, and (2) EPA can only regulate emissions of that pollutant if they are “reasonably anticipated to endanger human health or welfare.”
And there is the clincher. Congress not only defined “welfare” in the CAA, but but this definition explicitly includes effects on “weather” and “climate”, i.e., “welfare” includes “effects on soils, water, crops, vegetation, manmade materials, animals, wildlife, weather, visibility, and climate, damage to and deterioration of property, etc.” In other words, Congress ordered EPA to regulate an air pollutant (like CO2) if it is “reasonably anticipated to endanger” either “weather” or “climate.” There goes the argument that Congress never intended the Clean Air Act to cover climate change.
Fifteen years after Massachusetts was decided, we should be able to lay to rest the nonsense that climate change isn’t real and that Congress didn’t command the EPA to regulate greenhouse gasses, theories as antiquated as the idea that the Earth is flat–and far, far more dangerous.
*Connecticut v. AEP, 564 U.S. 410 (2011); Utility Air Regulatory Group v. EPA, 573 U.S. 302 (2014).