Bostock and the End of the Climate Change Double Standard
54 Pages Posted: 13 Nov 2020
Date Written: August 9, 2020
Even though the Supreme Court’s decision in Massachusetts v. EPA that greenhouse gases are air pollutants for the purposes of the Clean Air Act and the subsequent finding by the Environmental Protection Agency (EPA) that they “endanger” public health and welfare should have definitively resolved the issue, greenhouse gases have never been given their rightful place at the regulatory table. Instead, they have been subjected to a double standard and treated as regulatory pariahs. Perhaps motivated by the presence of four dissenters in Massachusetts v. EPA, during the last decade opponents of greenhouse gas regulation have pushed hard, with significant success, to limit the reach of Massachusetts v. EPA, even though no such limitation could fairly be derived from the Supreme Court’s opinion. And, they have raised ill-defined, amorphous “major question” roadblocks that are at odds with the structure of the Clean Air Act.
A seemingly unrelated event in June 2020, the Supreme Court’s decision in Bostock v. Clayton County finally opened the door to ending this pernicious greenhouse gas exceptionalism, and ensuring that, going forward, greenhouse gases are treated like all other pollutants that meet the requirements for regulation. The majority and the two dissents in Bostock set forth different interpretative approaches for how to deal with a half-century old statute. Guided by the blueprint of all three Bostock opinions, this Article performs a deep dive into the legislative materials surrounding the enactment of the Clean Air Act of 1970. After uncovering a treasure trove of sources that had not previously been part of the public discourse, it shows how, under the interpretative approach of each of the three opinions, greenhouse gases are unquestionably pollutants for the purposes of the Clean Air Act. Because the approaches in the majority and dissents in Bostock all point in the same direction, the era of greenhouse gas exceptionalism should now be over.
Keywords: Greenhouse Gas Regulation, Clean Air Act, Climate Change
JEL Classification: K2, K32, Q53
Suggested Citation: Suggested Citation