During yesterday's press call about the lawsuit asking EPA to follow through on Mass. v. EPA after a year's unreasonable delay, several cynical reporters harped on the question of why-- if an endangerment finding for CO2 is all that would emerge from this administration before the clock runs out-- the plaintiffs aren't content to wait for a new President to take office in January 2009 and start completely anew. Perhaps anticipating this argument, NRDC's David Dongier posted the following over at the Switchboard:
Let’s speak plainly. This is out and out defiance of the Supreme Court and the law of the land.
But the courts are getting tired of the Bush administration’s disrespect for law. The Court of Appeals in Washington – the court we’re going back to today – has rejected EPA’s defiance of the Clean Air Act in nearly a dozen cases over the past 12 years.
Some may say, let’s just wait until the new President takes office. All three candidates still in the race are pledged to act on global warming. But we’re not going to let this administration play us for fools, run out the clock, and get out of town after eight years of successfully ducking global warming.
It's a shame that Doniger's point that the rule of law itself, and not just clever delaying tactics, is at stake has unfortunately failed to resonate. The plaintiffs in the lawsuit filed against EPA yesterday acknowledge that the Supreme Court did not set a timeframe for action and that EPA is allowed discretion in making its decision, and that a writ of mandamus is normally a rare occurrence. The problem is that EPA did not act reasonably, citing entirely bogus reasons for abruptly halting the process that boldly defy the Court's explanation of the statute and its clear mandate.
In a system governed by laws and precedents, such blatant defiance simply cannot be allowed to stand. Doniger notes that sometimes in the past, the DC Circuit has served as a check on EPA failure to respect the Clean Air Act. The mandamus petition cites a passage from a 2007 case, Sierra Club v. EPA, which the plaintiffs apply to point out that "EPA is simply not free to delay...on the grounds that the agency wants to develop an 'overall approach'..." It goes on to bluntly state that:
If the Environmental Protection Agency disagrees with the Clean Air Act's requirements for setting emissions standards, it should take its concerns to Congress...In the meantime, it must obey the Clean Air Act as written by Congress and interpreted by this court."
It ought to go without saying, but that last statement rings doubly true when it comes to the dictates of the highest court in the land.