Carbon Dioxide: Our Newest Pollutant

37 Pages Posted: 20 Aug 2010 Last revised: 4 Jun 2013

See all articles by Richard A. Epstein

Richard A. Epstein

New York University School of Law; Stanford University - Hoover Institution on War, Revolution and Peace; University of Chicago - Law School


Ever since the controversial Supreme Court decision in Massachusetts v. EPA, carbon dioxide has been treated as a pollutant under the Clean Air Act. This article argues that this decision was wrong as a matter of statutory construction and sound as a matter of sound social policy: the CAA is the wrong vehicle to deal with either carbon dioxide of global warming. On the present state of the evidence, the case for strong restraints on carbon dioxide emissions has not been made. The evidence in favor of the close linkage between carbon dioxide and global warming has not been clearly established and domestic American initiatives are in any even likely to produce no discernible reduction in carbon dioxide levels in the absence of any agreement that binds other nations, especially China and India. In the short term at least an approach of watchful waiting seems preferable to any massive initiative. In the interim, efforts to deal with other greenhouse gases and to encourage wide spread technological improvements are more attractive policy alternatives.

Keywords: air pollution, global warming, Supreme Court, Clean Air Act, Massachusetts v. EPA

Suggested Citation

Epstein, Richard A., Carbon Dioxide: Our Newest Pollutant. Suffolk University Law Review, Vol. 43, No. 4, 2010, U of Chicago Law & Economics, Olin Working Paper No. 526, NYU Law and Economics Research Paper No. 10-47, Available at SSRN:

Richard A. Epstein (Contact Author)

New York University School of Law ( email )

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Stanford University - Hoover Institution on War, Revolution and Peace

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University of Chicago - Law School ( email )

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