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46 Colum. J. Envtl. L. 1 (2020-2021)

handle is hein.journals/cjel46 and id is 1 raw text is: Bostock and the End of the Climate Change Double Standard Richard L. Revesz* Greenhouse gases have never been given their rightful place at the regulatory table. Despite the statute's text and legislative history, anti-regulation groups have consistently argued that the modern Clean Air Act does not apply to these contaminants. In Massachusetts v. EPA, the Court held that greenhouse gases are air pollutants for the purposes of the Clean Air Act. Thereafter, the Environmental Protection Agency found that greenhouse gases endanger public health and welfare and, thus, could be regulated under the Act. These two events should have definitively resolved the issue. Instead, greenhouse gases have been subjected to a double standard and treated as regulatory pariahs. Perhaps motivated by the presence of four dissenters in Massachusetts v. EPA, opponents of greenhouse gas regulation have pushed hard during the last decade to limit the reach of that case, even though no such limitation could fairly be derived from the decision's text. They have also raised ill-defined and amorphous major question roadblocks that are at odds with the structure of the Clean Air Act. The Supreme Court's decision in Bostock v. Clayton County opened the door to ending this pernicious greenhouse gas exceptionalism, and ensured that, going forward, greenhouse gases are treated like all other pollutants that meet the requirements for regulation. Although the majority and the two * Lawrence King Professor of Law and Dean Emeritus, New York University School of Law. The generous financial support of the Filomen D'Agostino and Max E. Greenberg Fund at NYU Law School is gratefully acknowledged. I am very grateful to Phil Barnett, Jonathan Cannon, Sean Donahue, Barry Friedman, Natalie Jacewicz, Jack Lienke, Deborah Malamud, Catherine Sharkey, Richard Stewart, and the participants at the NYU Law School Faculty Workshop and the Institute for Policy Integrity Workshop for their perceptive comments and to my excellent research assistants: Henry Engelstein, Monica Finke, Matthew Novak, Zoe Palenik, Katherine Smith, Helen Sprainer, and, particularly, to Gretchen Dougherty, William Jackson, and Zo8 Smith, who spent a good part of Summer 2020 on this piece. 1

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