The Volokh Conspiracy

Former Secretary of State George Shultz and Nobel laureate economist Gary Becker take to the pages of the WSJ to urge a revenue-neutral carbon tax.

we propose a measure that could go a long way toward leveling the playing field: a revenue-neutral tax on carbon, a major pollutant. A carbon tax would encourage producers and consumers to shift toward energy sources that emit less carbon—such as toward gas-fired power plants and away from coal-fired plants—and generate greater demand for electric and flex-fuel cars and lesser demand for conventional gasoline-powered cars.

We argue for revenue neutrality on the grounds that this tax should be exclusively for the purpose of leveling the playing field, not for financing some other government programs or for expanding the government sector. And revenue neutrality means that it will not have fiscal drag on economic growth.

They recommend that revenue neutrality be achieved by fully rebating proceeds from the tax, and doing so in the most direct and transparent way possible — both good ideas. Their piece also urges the elimination of loan guarantees and other attempts by the federal government to play venture capitalist in the energy sector. Now if only they’d endorse prizes too.

A recent paper in Science  reconstructing climate records for the Holocene received substantial media attention because it showed a gradual cooling for several thousand years followed by a dramatic uptick in temperature in the past 100 years. This uptick seemed to replicate the blade of Michael Mann’s “hockey stick,” and was highlighted in media reports on the study.  Not so fast.  In response to questions about the study’s methodology, one of the study’s authors has acknowledged that the study’s conclusions with regard to the past 100 years are not reliable.  In a “Q&A” posted on the RealClimate blog, Harvard’s Jeremy Shakun says: “the 20th century portion of our paleotemperature stack is not statistically robust, cannot be considered representative of global temperature changes.”  In other words, the study may tell us something about the Holocene, but it doesn’t tell us much of anything about the past 100 years.  But then why didn’t the press release about the study or any of the news reports on the study say so? Why didn’t the authors clarify this point with reporters until now? Roger Pielke Jr. discusses why this is important. More from Andrew Revkin here.

No, this does not show that climate change is a scientific fraud.  What it does show, however, is that some are willing to “sex up” climate science findings to feed sensational media coverage, and end up undermining confidence in climate science.  Given that there is still much we do not know about climate change — including why mean global temperature has been flat for the past ten years — undermining confidence in climate science can (further) undermine its ability to inform policy.  Climate science has taken some significant hits in the past few years.  It doesn’t need any more.

Andy Kessler argues that the greater use of technology-inducement prizes could reap dramatic social benefits — far greater benefits that the sorts of prizes given out to recognize past achievement.  On the recently awarded Breakthrough Prizes in Life Sciences.

This type of prize is commendable, its generosity admirable. But it prompts a question: Will such a prize actually spur innovation or do anything to help society? Or will it be like those given to MacArthur Fellows, who receive $500,000 over five years? Last year the MacArthur winners included a marine ecologist and a stringed-instrument bow maker. Good for the winners, good for those giving out the money. For the rest of us? Not so much.

But what do you expect from a prize without a contest? Human psyche gets rewarded via vanity (read Nobel, Oscars). Yet economies and entrepreneurs need the incentives of a good old-fashioned contest. . . .

. I’m not one to tell someone else how to give away money, but . . . let’s have a real contest with some serious prize money. Sergey Brin is worth $23 billion and Mark Zuckerberg $13 billion. If they really want to have an impact on society—beyond the societal wealth already created by Google and Facebook—offer a billion-dollar BrinZuck prize to prevent or stop Alzheimer’s, or to regenerate spinal cords and organs, or to cure obesity. Instead of small-ball academic researchers vying for grants from the National Institutes of Health, you’d get entrepreneurs coming out of the woodwork trying innovative approaches to win a $1 billion jackpot. Or maybe the challenge could be to create personal jet packs. Or neuron downloads. Whatever—but something BHA. [Big, hairy and audacious.]

This is the sort of approach the federal government (and private philanthropists) should take toward alternative energy.  Meaningful greenhouse gas emission reductions will not be achieved until it is relatively cheap to reduce such emissions while meeting human needs — including the widespread need for economic development and access to energy in developing nations.   This requires dramatic technological innovation — and there is no better way to encourage substantial economic rewards.  As Kessler notes, such rewards prompt substantial efforts at market innovation, such as in the tech sector.  Where the benefits of innovation are more difficult for the innovator to capture — as is often the case with environmental benefits, such as the reduction of greenhouse gas emissions — markets alone will not provide adequate incentive.  This creates a void prizes can fill.

In my paper on the use of technology inducement prizes to encourage the development of climate-friendly technologies, I suggested that the federal government devote a substantial portion of energy R&D budgets to the endowment of prizes, as this is far more likely to produce the  desired technological breakthroughs than regulatory mandates or traditional ex ante R&D grants.

Creating contests for prizes to encourage and direct innovative efforts is important.  So too are the selection of contest aims and criteria.   To maximize the value of such prizes, it’s important to identify the sorts of technological or other achievements that will redound to public benefit, and identify sound criteria for identifying the winner.  This can be difficult, but no more difficult than trying to identify, in advance, those labs or research projects that are most likely to produce desired innovations.  Prizes have been shown to drive innovation.  Where innovation is necessary, policymakers (and others) should turn to prizes.

This morning the U.S. Court of Appeals for the D.C. Circuit handed down a unanimous opinion rejecting both industry and environmentalist group challenges to the Fish & Wildlife Service’s decision to list the polar as a “threatened” species.  Environmentalist groups argued the FWS should have listed the polar bear as “endangered.  Industry groups and their allies thought the polar bear should not have been listed at all.  Applying the highly deferential review that is customary in these sorts of cases, the panel had little difficulty dispatching both sides’ claims.  While there are some questions about the FWS’ critical habitat designation for the polar bear, which was thrown out by a federal district court judge in separate litigation, my sense is that the D.C. Circuit got this one right.  A federal agency’s assessment of the relevant scientific literature is due substantial deference.

I have prior posts on the polar bear listing and litigation here, here, and here.  See also this article from The New Atlantis.

At DotEarth, Andrew Revkin summarizes recent research that is leading to some to conclude that the climate is less sensitive to greenhouse forcing than previously thought.  He writes:

on one critically important metric — how hot the planet will get from a doubling of the pre-industrial concentration of greenhouse gases, a k a “climate sensitivity” — some climate researchers with substantial publication records are shifting toward the lower end of the warming spectrum.

There’s still plenty of global warming and centuries of coastal retreats in the pipeline, so this is hardly a “benign” situation, as some have cast it.

But while plenty of other climate scientists hold firm to the idea that the full range of possible outcomes, including a disruptively dangerous warming of more than 4.5 degrees C. (8 degrees F.), remain in play, it’s getting harder to see why the high-end projections are given much weight. . . .

The reason it’s worth working to clarify what’s going on is that a lower climate sensitivity could substantially expand the timescale on which decarbonization of humanity’s energy menu would need to take place to blunt climate change. This could raise the odds of a Thornton Wilder ending to our “large-scale geophysical experiment.”

This does not mean we should stop worrying about global warming.  As I’ve noted before, even if a doubling of carbon-dioxide-equivalent will produce warming at the low end of conventional projections, it is still a serious concern (even from a libertarian perspective).  But it’s also important to get the science right, and not base policy on exaggerated fears or implausible scenarios.  And more importantly, given the enormous difficulty of stabilizing atmospheric concentrations of greenhouse gases in the near-to-medium term, it would be good news if the rate and magnitude of future warming will be less than some fear.  After all, it’s not as if we’re going to prevent climate change by adopting a “more  European” work schedule.

This week the National Oceanographic and Atmospheric Administration reported that 2012 was the warmest year on record for the contiguous United States. NOAA’s not the only one to reach this conclusion. As Ron Bailey noted http://www.ncdc.noaa.gov/sotc/“>here, 2012 was also the warmest year in the continental U.S. in the 34-year satellite temperature record (but not the hottest year globally). Indeed, as Bailey notes here, 2012 tops five separate temperature records. Globally, however, 2012 was not the warmest on record — but it was still in the top ten.

Earlier this week, Rand Simberg and the Competitive Enterprise Institute replied to Michael Mann’s libel suit. Specifically, they filed a motion to dismiss for failure to state a claim and, more interestingly, a special motion to dismiss under the District of Columbia’s Anti-SLAPP Act. As I noted here, Mann exposed himself to this motion by choosing to file his case in D.C. Superior Court.

Under D.C. Code Section 16-5502(b), a defendant in a libel action who is being sued for a written or oral statement made “in connection with an issue of public interest” is entitled to have the suit dismissed unless the plaintiff can show that “the claim is likely to succeed on the merits.” Further, the statute provides that filing the special motion stays discovery proceedings unless particular showings can be made. Given that global warming and climate policy are unquestionably issues of public interest (defined by the statute to include environmental issues), the relevant statements are clearly covered. So in order to prevail Mann will not only have to show that Simberg and CEI made provably false statements of fact concerning him that were defamatory, he will also have to show that Simberg and CEI made knowingly false statements or make their statements in “reckless disregard” of the truth — and that is notoriously difficult to do, particularly in the context of heated political debate. Further, Mann is unlikely to have the benefit of discovery to assist in his claims. Should Simberg and CEI prevail with this motion, they will be able to seek recovery of their legal costs. All of this makes me wonder why Mann chose D.C. as the venue for his suit.

My prior posts on this case are here, here, and here.

Evidence of global warming can be found in a global increase in the frequency and severity of droughts, right? That’s what scientists thought, but a new paper in Nature finds no evidence that warmer temperatures in recent decades have correlated with (let alone caused) an increase in droughts. Contrary to what the IPCC had concluded in its 2007 assessment, the new analysis finds “there has been little change in drought over the past 60 years.” Roger Pielke Jr. has more.

On Monday, famed climate scientist Michael Mann filed suit against National Review and the Competitive Enterprise Institute over some allegedly defamatory blog posts. Now some of the defendants have responded.

Here is CEI’s official response, and a legal analysis from their lawyer. Of note, while CEI refused to apologize for the initial blog post (which was edited long before Mann threatened to file suit), it has offered to publish Mann’s response on their climate blog, an offer Mann has refused. Perhaps this is because, as Mann has commented on his Facebook page, ” There is a larger context for this latest development, namely the onslaught of dishonest and libelous attacks that climate scientists have endured for years by dishonest front groups seeking to discredit the case for concern over climate change.” Of course is Mann is suing others for defamation, he may wish to be more careful about repeatedly attacking them as “front groups” for industry.

Mark Steyn has a few posts on NRO’s the Corner — here, here, and here — suggesting he’s not too worried about the suit. Watt’s Up With That rounds up more reactions here.

As I noted here, I’m skeptical of the suit. Here’s additional analysis from Ken at Popehat and Public Citizen’s Paul Alan Levy.

An interesting twist in this case is the fact that Mann filed his suit in D.C. Superior Court, which means it is subject to the District’s anti-SLAPP suit law which makes it particularly difficult to maintain libel and defamation suits. Alison Frankel explains:

The law, in effect, shifts the way courts decide motions to dismiss, doing away with the assumption that the plaintiffs’ allegations are true. It also restricts discovery, so plaintiffs usually have to show they’re likely to prevail without the benefit of depositions and documents from the other side. . . .

Mann’s lawyers at Cozen filed his complaint against CEI, Simberg, the National Review and Steyn in Superior Court of the District of Columbia, not in federal court. Had they brought the suit in federal court, citing Mann’s Pennsylvania citizenship and the National Review’s New York headquarters, Mann might have been able to avoid Washington’s anti-SLAPP law, . . . But it’s hard to see how, otherwise, Mann’s case won’t be subject to dismissal under the anti-SLAPP statute, since the scientific backing for climate change evidence is certainly speech of public concern.

More popcorn please.

Climatologist Michael Mann, creator of the infamous “hockey stick” graph, has filed suit against National Review and the Competitive Enterprise Institute for allegedly defamatory blog posts attacking Mann and his work. Dr. Mann has posted a release about the suit on his Facebook page. I’ll post links to the complaint once it’s on-line. In the meantime, here’s my prior post on the controversy.

Given that Dr. Mann is a public figure and a prominent participant in climate policy debates, and that debate over the soundness of the “hockey stick” graph continues, I am skeptical of this suit — and I say this as someone who believes human activity is contributing to climate change and supports appropriate policy responses. All sorts of outrageous charges are made all the time in the rough and tumble of the current climate debate, and many people forthrightly believe that Mann and others have cut corners in their scientific research. I think this will make it difficult for Mann to show that those involved acted with “reckless disregard” of the truth. I also doubt the courts will be too eager to police the word choices of polemical blog posts made by political commentators in the course of heated policy debates. Then again, I’m not being paid to offer a professional opinion on this matter, and Dr. Mann has retained prominent counsel. Stay tuned.

[Disclosure: I am a contributing editor at National Review Online, for which I write occasional articles and blog posts, and I worked for CEI in the 1990s. I have not discussed the merits of this suit with anyone in either organization.]

UPDATE: Here is Michael Mann’s complaint. BLT covers the story here.

UPDATE: Mark Steyn responds here. Ken at Popehat comments here.

Earlier this month, several of the parties challenging the Environmental Protection Agency’s decision to regulate greenhouse gases under the Clean Air Act filed petitions for panel rehearing or rehearing en banc in Coalition for Responsible Regulation v. EPA, in which the U.S. Court of Appeals for the D.C. Circuit turned away all of the state and industry challenges to the EPA’s rules. I summarized the court’s decision here, and provide greater background on the EPA’s regulations and associated policy issues here.

The en banc petitions stress the unusual magnitude and importance of the regulations at issue, as well they should, but that’s often not enough for en banc review. Nor are protestations that that the original panel muffed the merits (case in point), particularly where (as here) most of the issues could be resolved on traditional administrative law grounds. The industry argument that the panel erred in refusing to force the EPA to consider potential adaptation to climate change, for example, is a non-starter. Even if the panel got this question wrong (and I don’t believe it did), that’s not the sort of question that is worthy of en banc review.

There is one issue, however, that could well be en banc-worthy: the panel’s conclusion that industry petitioners lacked standing to challenge the EPA’s so-called “tailoring rule.” While the strict application of Article III standing requirements is nothing new on the D.C. Circuit, here the panel applied the standing rules to prevent the object of a government action from challenging the lawfulness of that action, on the grounds that the harm would not be redressable by a favorable ruling on the merits. Though a plausible reading of the relevant standing precedents, this is a holding that could insulate all manner of regulatory action from judicial review, and expand the already troubling, de facto agency authority to issue “waivers” or otherwise disregard applicable legal requirements.

A bit of background: The Clean Air Act requires the EPA to impose various regulatory requirements on stationary sources that have the potential to emit more than 100 or 250 tons per year of regulated pollutants. (The specific threshold depends on the type of facility.) As applied to traditional pollutants, these thresholds catch thousands of facilities. But applied to greenhouse gases — carbon dioxide in particular — they catch millions. This, the EPA claims, would be an “absurd” result because it would impose an insuperable burden on the EPA and cooperating state agencies. To remedy this, the EPA sought to “tailor” the Act’s requirements by substituting numerical thresholds of its own devising for those contained in the statute itself. So with a wave of its administrative hand, the EPA substituted 75,000 and 100,000 for 100 and 250, and reserved the right to lower the threshold at its discretion in the future.

Industry and state petitioners challenged the Tailoring Rule on the grounds that the EPA has no authority to rewrite the statute by administrative fiat. Applying the plain text of the statute, however, would result in more stringent regulation, not less. Larger facilities subject to the Tailoring Rule would not be guaranteed any direct relief from the rule’s requirements — save whatever relief would come from delay caused by the litigation — and therein lied the problem. If being subject to an illegal regulation were not itself sufficient for standing, all the companies could claim was that subjecting some portions of industry to stringent greenhouse gas permitting rules while exempting others would produce a competitive harm in the form of an unlevel playing field. Exempting some companies from the requirements could give exempted parties a competitive advantage against those who emit enough to still be regulated under the “tailored” rule. Yet unless Congress were to amend the Act (or the EPA were forced to adopt an alternative statutory construction), the larger facilities would be regulated no matter what.

Because the industry petitioners could not claim their suit would necessarily relieve them of any regulatory burdens, the panel concluded, industry petitioners lacked standing to sue. (Indeed, the panel went further and said there was no injury because the regulation of stationary sources was an inevitable consequence of the endangerment finding.) There is a logic to the D.C. Circuit’s reasoning — after all, if winning won’t relieve someone of any regulatory burdens, how could their claim be redressable? One possible response is that rejecting the “Tailoring Rule” could force the EPA to consider alternative ways to avoid the “absurd results” it fears from applying the Act as written to greenhouse gases — alternatives that might well exempt some of the industry petitioners from regulation — but the court closed that door by accepting the EPA’s interpretation of the Act in other portions of the opinion (and then conveniently ducking whether the EPA’s Tailoring Rule is itself permissible under the Act).

A consequence of this decision is that no party subject to the Tailoring Rule has standing to challenge its legality. Thousands of companies are forced to comply with the regulation, and none can have their day in court. Applied more broadly, this decision could have substantial implications, effectively giving agencies like the EPA carte blanche to issue rules selectively exempting politically favored constituencies from statutorily mandated rules. (Indeed, that’s exactly what happened here, as the EPA was well aware that trying to impose the Clean Air Act to stationary source emissions of greenhouse gases would produce a substantial political backlash.) That doesn’t mean the decision is wrong — the rule against taxpayer standing insulates many allegedly illegal government actions from judicial review — but it should raise some questions.

The decision also rests uneasily with the Supreme Court’s treatment of procedural rights in standing cases, which hold that requiring the government to observe such procedural rights is sufficient to satisfy the redressability requirement, even if the ultimate government action will be unchanged. So, for instance, if a plaintiff alleges a federal agency failed to conduct an Environmental Impact Statement under the National Environmental Policy Act, she does not need to allege that the agency would have made a different decision had the EIS been completed. The mere fact that she is injured as a consequence of the agency’s procedurally deficient action is enough. Yet under the D.C. Circuit’s reasoning, there is sufficient redressability for standing when an agency causes injury by failing to follow statutorily prescribed procedures, but not sufficient redressability for standing when an agency causes injury by adopting a regulation that violates the statute’s plain text. [Note: For purposes of standing, such allegations must be accepted as true, so the standing claim does not turn on whether the industry petitioners are correct on the merits on this point -- though, as it happens, they are.]

This aspect of the D.C. Circuit’s standing holding are also at odds with Massachuetts v. EPA. While not all would read the Clean Air Act to provide procedural rights, the Mass v. EPA majority did. Specifically, they held that Section 307(b)(1) of the Clean Air Act provides a “procedural right to challenge” an unlawful EPA action “as arbitrary and capricious,” so there was no need to show that allowing the EPA to regulate greenhouse gases would halt global warming. As the Mass v. EPA majority explained, “When a litigant is vested with a procedural right, that litigant has standing if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant.” This case, too, is a challenge to an unlawful EPA action under Section 307(b)(1), and the industry petitioners are unquestionably injured by being forced to comply with the relevant permitting rules — and yet the D.C. Circuit held they did not have standing.

In Lujan v. Defenders of Wildlife, Justice Scalia explained “there is ordinarily little question” that one who is the object of government action has standing to challenge that action. Yet under the D.C. Circuit’s decision, no entity subject to the Tailoring Rule has standing to challenge it — and that might be enough to make the issue en banc-worthy.

UPDATE: Nathan Richardson comments at Common Resources here.

Penn State climatologist Michael Mann, he of the infamous “Hockey stick” graph, is threatening to sue Mark Steyn and National Review for a blog post on NRO in which Steyn (quoting Rand Simberg) compared Penn State’s investigation of scientific misconduct allegations against Mann with the same university’s initial investigation of Jerry Sandusky and the Penn State football program. Steyn called Mann’s hockey-stick graph “fraudulent” and Penn State’s investigation of Mann’s conduct in the wake of the “ClimateGate” e-mail scandal, “a joke.”

Steyn’s comments may have been over the top, but are they worth a lawsuit? Mann thinks so, and has threatened to sue if NRO does not remove the offending blog post.

A month later, the blog post is still there, and National Review is not backing down. Here’s the response from their lawyer, which notes (correctly in my view) that Mann is a public figure who would have to prove, by clear and convincing evidence, that NR published “a provably false statement” with actual knowledge the statement was false or “reckless disregard” for the truth or falsity of the statement. Further, the letter notes, in order to defend itself NR would be entitled to seek discovery, and in the process obtain access to e-mails and other records that Mann has, thus far, resisted disclosing in various freedom-of-information suits prompted by ClimateGate. Writes NR editor Rich Lowry:

Usually, you don’t welcome a nuisance lawsuit, because it’s a nuisance. It consumes time. It costs money. But this is a different matter in light of one word: discovery.

If Mann sues us, the materials we will need to mount a full defense will be extremely wide-ranging. So if he files a complaint, we will be doing more than fighting a nuisance lawsuit; we will be embarking on a journalistic project of great interest to us and our readers.

And this is where you come in. If Mann goes through with it, we’re probably going to call on you to help fund our legal fight and our investigation of Mann through discovery. If it gets that far, we may eventually even want to hire a dedicated reporter to comb through the materials and regularly post stories on Mann.

“I don’t bluff,” Mann’s lawyer told the Columbia Journalism Review in July. I think the folks at NR just called it.

[Disclosure: I am a contributing editor to National Review Online, for which I write occasional articles and blog posts.]

UPDATE: More from Steve Hayward and Mark Steyn.

FURTHER UPDATE: Mann and his attorney’s respond. Says Mann, “We intend to file a lawsuit.” Grab the popcorn.

In yesterday’s NYT, Yoram Bauman and Shi-Ling Hsu explained why the U.S. would be wise to follow British Columbia’s example and impose a carbon tax and use the revenues to reduce other tax rates.

On Sunday, the best climate policy in the world got even better: British Columbia’s carbon tax — a tax on the carbon content of all fossil fuels burned in the province — increased from $25 to $30 per metric ton of carbon dioxide, making it more expensive to pollute.

This was good news not only for the environment but for nearly everyone who pays taxes in British Columbia, because the carbon tax is used to reduce taxes for individuals and businesses. Thanks to this tax swap, British Columbia has lowered its corporate income tax rate to 10 percent from 12 percent, a rate that is among the lowest in the Group of 8 wealthy nations. Personal income taxes for people earning less than $119,000 per year are now the lowest in Canada, and there are targeted rebates for low-income and rural households.

According to Bauman and Hsu, adopting a similar tax in the U.S. could allow for substantial reductions in corporate and income tax rates.

What would a British Columbia-style carbon tax look like in the United States? According to our calculations, a British Columbia-style $30 carbon tax would generate about $145 billion a year in the United States. That could be used to reduce individual and corporate income taxes by 10 percent, and afterward there would still be $35 billion left over. If recent budget deals are any guide, Congress might choose to set aside half of that remainder to reduce estate taxes (to please Republicans) and the other half to offset the impacts of higher fuel and electricity prices resulting from the carbon tax on low-income households through refundable tax credits or a targeted reduction in payroll taxes (to please Democrats).

The threat of climate change is one reason to support a revenue-neutral carbon tax proposal like this. But even those skeptical that warming poses much of a threat could come on board simply because broad-based consumption taxes of this sort are more efficient than taxes on labor and wealth creation. Furthermore, as Bauman and Hsu note, a carbon tax, as a consumption tax, would “give Americans more control over how much they pay in taxes.” Households and businesses could alter what they pay the government by altering their behavior. This is but another reason to favor shifting the tax burden away from income and on to consumption of carbon.

Today’s decision by the U.S. Court of Appeals for the D.C. Circuit in Coalition for Responsible Regulation v. EPA is quite significant for environmental law. As John Elwood notes below, the court turned away the state and industry challenges to the EPA’s decision to begin regulating greenhouse gases under the Clean Air Act. The only element of the decision that is at all surprising is the court’s dismissal of the challenges to the EPA’s “tailoring rule” due to a lack of standing.

On the merits, the court rejected challenges to the EPA’s determination that the emission of greenhouse gases causes or contributes to air pollution that which may be reasonably anticipated to endanger public health or welfare (the “endangerment finding”) and rejected claims that the EPA’s new standards for GHG emissions from mobile sources were arbitrary and capricious. This was to be expected. As I’ve noted before, judicial review of these sorts of decisions is highly deferential, and the EPA did not have to do much to support its decision. Even if the industry challengers had been able to convince the court that climate change is not that big of a deal, this would not have been enough to overturn the endangerment finding, provided the EPA gave a sufficient explanation of its conclusions — which it did.

The more interesting parts of the opinion concern whether the petitioners could challenge the EPA’s decision to regulate stationary source GHG emissions generally, and the EPA’s adoption of the tailoring rule in particular. On the former question, the court concluded that industry petitioners could challenge a decades-old EPA determination that the regulation of a pollutant from mobile sources under Section 202 of the Act triggers stationary source regulations. This was because there were some plaintiffs who had never-before been subject to stationary source regulation under the Clean Air Act because it was not until carbon dioxide was treated as a pollutant that these plantiffs emitted enough of a regulated substance to fall within the Act’s controls.

This small victory on ripeness was but a prelude to a loss on a larger question: Whether large emitters of greenhouse gases could challenge the EPA’s decision to forego regulation of smaller sources. No, the court concluded, because the industry petitioners did not satisfy the requirements for Article III standing to challenge the EPA’s failure to regulate someone else. However great the injury some industry groups may suffer from GHG regulation, the court reasoned, forcing the EPA to regulate additional sources would provide no meaningful redress. It does not matter that the EPA’s tailoring rule flatly contradicts the plain text of the Clean Air Act and represents a dramatic assertion of agency discretion over a detailed, legislatively crafted scheme. If there’s no standing, the suit cannot proceed.

This decision will be the last stop for most, if not all, of the industry challenges to the GHG rules. En banc and cert petitions may get filed, but I can’t see either the full D.C. Circuit or the Supreme Court having much interest in the endangerment finding or the EPA’s mobile source rules. If any claim has a chance to go on, it would be the standing argument. If there’s an issue in this case that could catch the Supreme Court’s attention, this would be it. Among other things, it could giver the Supreme Court the opportunity to address how recent standing decisions affect standing claims based upon alleged competitive harm (i.e. the harm suffered by company A due to the government’s favorable treatment of company B). Still, I would not bet on it. In all likelihood those who oppose GHG regulation under the Clean Air Act will have to direct their attention to Congress. They’re done in the courts.

UPDATE: More on the decision at Legal Planet from Ann Carlson here and here.

The summary of the holding from the court’s opinion:

[W]e conclude: 1) the Endangerment Finding and Tailpipe Rule are neither arbitrary nor capricious; 2) EPA’s interpretation of the governing CAA provisions is unambiguously correct; and 3) no petitioner has standing to challenge the Timing and Tailoring Rules. We thus dismiss for lack of jurisdiction all petitions for review of the Timing and Tailoring Rules, and deny the remainder of the petitions.

The opinion is available here.  The court simultaneously ordered the Clerk, consistent with D.C. Circuit Rule 41(b), to “withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing or petition for rehearing en banc.”