Much has been written and spoken on the topic of global and U.S. domestic air quality relative to climate change. Emotions are high as are the stakes. As noted by ACOEL Fellow Richard A. Horder’s blog article, On Elections, Pendulums, and Perspective, the pendulum is swinging on environmental policy. Edgar Allan Poe would caution about the pit, the pendulum, and politics.
As for current caselaw on federal statutory authority to manage greenhouse gases, the Clean Air Act as interpreted by the U.S. Supreme Court in Massachusetts v. EPA, 549 U.S. 497 (2007) authorizes federal regulation of emissions of carbon dioxide and other greenhouse gases. The Court also noted that because EPA had authority to set greenhouse gas standards and had offered no “reasoned explanation” for failing to do so, it was concluded that the agency had not acted “in accordance with the law” when it denied the requested rulemaking.
A convenient and informative narrative on federalism relative of issues of national significance is found in Executive Order (“E.O.”) 13,132, simply titled “Federalism” as issued by President William J. Clinton in 1999. 64 Fed. Reg. 43,255 (Aug. 4, 1999). The E.O. offers “Fundamental Federalism Principles,” that highlight the need for careful management of issues of national scope and significance relative to the Constitutional preservation of states authority over matters not explicitly assigned to the federal level. “Acts of the national government—whether legislative, executive, or judicial in nature—that exceed the enumerated powers of that government under the Constitution violate the principle of federalism established by the Framers.” Sec. 2 (g). Additionally, it prescribes “the greatest caution where State or local governments have identified uncertainties regarding the constitutional or statutory authority of the national government.” Sec. 2(i). The text reads as a treatise on collaborative, transparent and balanced government. The Supreme Court’s decision in American Electric Power Co. v. Connecticut, 564 U.S. 410 (2011), affirmed that federal common-law claims on GHG emissions are preempted, as Congress tasked the EPA with regulating these emissions. Congress had exercised its primary authority via the Clean Air Act “to prescribe national policy in areas of special federal interest.” Id. at 424. As for state common law, the Supreme Court held in International Paper Co. v. Ouellette, 479 U.S. 481 (1987), that nuisance claims concerning interstate pollution can proceed under state common law so long as the claims are brought under source state law.
Cautious federal law suggests the administration of the rule of law must be based on principles of “reasoned explanation” of Massachusetts (citation to Chevron v. NRDC, 467 U.S. 837 (1984)) and more recently Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024). In Massachusetts, the Court ruled,
In short, EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change. Its action was therefore “arbitrary, capricious, … or otherwise not in accordance with law.” 42 U. S. C. §7607(d)(9)(A). We need not and do not reach the question whether on remand EPA must make an endangerment finding, or whether policy concerns can inform EPA’s actions in the event that it makes such a finding. Cf. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843–844 (1984). We hold only that EPA must ground its reasons for action or inaction in the statute.
549 U.S. at 527.
Noteworthy is Chief Justice Roberts’ Massachusetts dissent with whom Justice Scalia, Justice Thomas and Justice Alito joined. Roberts’ observations sound similar to those recently articulated by U.S. EPA:
To the tenuous link between petitioners’ alleged injury and the indeterminate fractional domestic emissions at issue here, add the fact that petitioners cannot meaningfully predict what will come of the 80 percent of global greenhouse gas emissions that originate outside the United States. As the Court acknowledges, “developing countries such as China and India are poised to increase greenhouse gas emissions substantially over the next century,” ante, at 23, so the domestic emissions at issue here may become an increasingly marginal portion of global emissions, and any decreases produced by petitioners’ desired standards are likely to be overwhelmed many times over by emissions increases elsewhere in the world.
Id. at 545 (emphasis added).
The recent U.S. EPA proposal “Reconsideration of 2009 Endangerment Finding and Greenhouse Gas Vehicle Standards” (90 Fed. Reg. 36,288, August 1, 2025), proposes to determine there is no “requisite technology” for vehicle emission control capable of having a measurable impact on the dangers identified in the Endangerment Finding. Id. at 36,296-7. EPA solicits comment on a number of issues relevant to the discussion above to include: scientific data, peer-reviewed studies and scientific developments; reliance issues; preemptive effect of CAA in event of rescission; requisite technology; costs and benefits assessments; public welfare impacts, etc. Id. at 36,324-5. The close of the comment period is September 22, 2025.
Perhaps we can all engage in a dialogue about a solution, rather than torturing ourselves by trying to avoid our worst fears, whether about pits, pendulums, or politics.
