102 Nw. L. Rev. Colloquy 1 (2007-2008)

handle is hein.journals/nulro102 and id is 1 raw text is: 



Copyright 2007 by Northwestern University School of Law                   Vol. 102
Northwestern University Law Review Colloquy




MASSACHUSETTS V EPA: BREAKING NEW
       GROUND ON ISSUES OTHER THAN GLOBAL
       WARMING


                                                             Kathryn A. Watts*


                                                          Amy J. Wildermuth**

     After the Supreme Court handed down its split 5-4 decision in Massa-
chusetts v. EPA,1 various media outlets trumpeted the significance of the
case. As one example, the Chicago Tribune proclaimed: EPA must regu-
late greenhouse gases. 2 The problem, of course, is that the Court said no
such thing. To be sure, the Court determined that greenhouses gases were
air pollutants within the meaning of the Clean Air Act (CAA).' But the
Court's opinion did not order the EPA to regulate with respect to climate
change. Rather, the ruling remands the case to allow the agency to recon-
sider its denial of a petition to regulate the emissions of four pollutants as-
sociated with climate change from mobile sources under Section 202 of the
CAA.4 The ruling, in other words, leaves the EPA free to decide not to
regulate, so long as it provides adequate justification for its decision. This
means that what the media has touted as the global warming case may not
actually lead to the regulation of global warming at all under the current
CAA.5


     Visiting Assistant Professor, Northwestern University School of Law.
     Associate Professor of Law, University of Utah, S.J. Quinney College of Law. Much of the dis-
cussion on state standing is based on Professor Wildermuth's larger project, hy State Standing in Mas-
sachusetts v. EPA Matters, which will appear this summer in the JOURNAL OF LAND, RESOURCES AND
ENVIRONMENTAL LAW.
   1 127 S. Ct. 1438 (2007) (link).
   2 Michael Hawthorne, EPA Must Regulate Greenhouse Gases, CHICAGO TRIBUNE, Apr. 3, 2007, at
3 (link).
   3 Massachusetts, 127 S. Ct. at 1460.
   4 42 U.S.C.  7521(a)(1) (2006) (link).
   5 Whether the decision will prompt regulation of greenhouse gas emissions under a different regula-
tory regime is another question. Given the heightened national attention on this issue, the EPA's view
that regulating greenhouse gases under the current CAA would be awkward, and the industry's interest
in specific climate change legislation, it is no surprise that Congress seems inspired to do something
about climate change. Accordingly, we think that in the not-too-distant future Congress will enact a
new, comprehensive climate change statute that will likely have as its central feature a cap-and-trade
program.

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