D.C. Circuit Denies Rehearing in Endangerment Case

Cross-posted from Legal Planet. Six months ago, the D.C. Circuit upheld EPA's finding that greenhouse gases endanger human health and welfare, triggering coverage under the Clean Air Act. On Thursday, the full court denied rehearing to the three-judge panel's decision. There were only two dissents, which obviously were hoping to set the stage for a cert. petition to the Supreme Court. The dissents provide a preview of the kinds of arguments that will be made to the Supreme Court. One key point is that neither dissent questioned the scientific basis for EPA's finding. It is clear that the climate skeptic positions advanced by the state of Texas have no traction even with very conservative judges. The strongest arguments raised by the dissents involve a technical statutory issue. The case involves provisions of the Clean Air Act that apply to "any air pollutant." The dissent argues that this means "any criterion air pollutant" (meaning the six pollutants that are most extensively regulated by the statute." I discussed this issue extensively in a post about the original decision, so I won't go into the details here, but I think EPA's position on this issue is sound. It's notable than only two of the conservatives on the D.C. Circuit were willing to endorse the attack on the EPA's interpretation.