The Silver Lining in Yesterday's Cloud

Posted by Tim Dowling

Over at the Georgetown Law Faculty Blog, Prof. Lisa Heinzerling has this terrific post that identifies the silver lining in the cloud of nonsense comprising EPA's justification for its waiver denial (released yesterday).  Prof. Heinzerling, the lead author of the state's briefs in Mass. v. EPA, explains that Johnson's justification for the waiver denial now compels him to determine under the Clean Air Act that greenhouse pollution endangers public health and welfare.  She writes:

But here is the kicker: Johnson concluded that California's problems aren't "compelling and extraordinary" because they're no worse than the very bad problems the rest of the country faces as a result of climate change.  Thus, in the course of denying California's waiver, EPA managed to make explicit, for the first time, its view that greenhouse gases endanger public health and welfare.  Johnson's discussion of greenhouse gases and climate change now obligates him to regulate these pollutants under the Clean Air Act.

The entire post is well worth reading.  Prof. Heinzerling's logic is impeccable.  Although Johnson might well remain unmoved, preferring instead to bow to concerns expressed by industry, those seeking to force him to make the endangerment finding now have a new arrow in their quiver.

Update (after the jump) 

It is worth noting that in footnote one of yesterday's document, EPA Administrator Johnson asserts that nothing in that document should be construed as being relevant to the endangerment finding.  Nevertheless, he concludes that it is "unequivocal" that the climate is warming, there is "strong evidence" of rising global sea levels, and it is "likely" or "very likely" that other harmful effects will follow as a result of global waring.  His disclaimer cannot not undo the legal consequences of these findings.  As Prof. Heinzerling notes:

"Johnson cannot so easily avoid the consequences of his own conclusions.  Settled law makes clear that formal factual findings like those made in Johnson's decision constitute an endangerment finding under the Clean Air Act, no matter how the agency labels them."