April 2, 2007
Mass v. EPA: The Reason I Don't Go to Vegas
I admit it. I'm batting .000.
I thought the Supreme Court would duck on Lawrence v. Texas. They didn't -- in Justice Kennedy's sterling opinion sounding a clarion call against the irrationality of discrimination against gays and lesbians.
I was also convinced that they'd duck on Mass. v. EPA -- even more likely to duck than on Lawrence. I expected the court to decide that plaintiffs had standing -- there was simply no good doctrinal basis to decide otherwise. I didn't think the government had any chance on the merits. But I expected the court to stretch as far as necessary to find another basis, such as the political question doctrine, to avoid a decision on the merits.
But they didn't. Justice Stevens wrote a masterful and frank opinion that decimated defendants' arguments. MASS.pdf So, what happens now? At the AALS conference in January, I suggested that all of the global warming litigation will produce enough head (in water resources lingo) to force national GHG emissions control legislation. The important questions will be (1) how much of a reduction how quickly and (2) whether to preempt more rigorous state and local efforts. And there may be some deals to be made -- preemption as the price for relatively strict national emissions caps. But, then again, I'm still batting .000.
The cascade of commentary has just begun. One of the first out of the block is Jonathan Adler on Volokh Conspiracy about the ramifications of the decision on standing arguments. Much more to come, I'm sure.