- Jonathan Miller, Double Absurdity: Regulating Greenhouse Gas Under the Clean Air Act, 47 Hous. L. Rev. 1389 (2011). (Westlaw)
In Massachusetts v. EPA, the Court prompted the EPA to determine whether greenhouse gas (GHG) endangers human health and welfare, and consequently whether GHG should be regulated under the Clean Air Act (CAA). Since then, the EPA has issued a series of regulatory actions in response, culminating in a “tailoring rule” designed to regulate GHG emissions from large sources while avoiding regulation of smaller sources. The problem is that the CAA does not allow for the distinction between larger and smaller sources proposed in the tailoring rule. The EPA seeks to justify the proposed deviation from the statute by using the controversial “absurd results” and “administrative necessity” doctrines.
This Comment examines the efforts to regulate GHG under the CAA and highlights some flaws in the current approach. It begins with a brief summary of certain provisions of the CAA, focusing on the sections pertaining to GHG regulation. Then, it reviews Massachusetts and the subsequent EPA actions, focusing on potential arguments against the proposed rules. The Comment concludes by arguing that under a permissible reading of the statute, it is unnecessary to apply the “absurd results” and “administrative necessity” doctrines, and therefore the EPA should not be allowed to do so.