Re: The Climate Litigation Danger


perhaps your reference to the EPA

is a veiled reference to

Massachusetts v. EPA

,but if not then I would note that the Supreme Court consideredyour line of reasoning in its April 2007 decision, and flatly rejectedit in the context of its standing analysis.  Citing the EPA’s argument that global warming is fueled in largepart by China and India, it responded (at 20-22):

EPA overstates its case. Its argument rests on the erroneousassumption that a small incremental step, because it is incremental,can never be attacked in a federal judicial forum. Yet accepting thatpremise would doom most challenges to regulatory action. Agencies, likelegislatures, do not generally resolve massive problems in one fellregulatory swoop. … “[A] reform may take one step at a time,addressing itself to the phase ofthe problem which seems most acute tothe legislative mind” … . They instead whittle away at them overtime, refining their preferred approach as circumstances changeand asthey develop a more-nuanced understanding of how best to proceed.
…  While it may be true that regulating motor-vehicle emissions will not by itself reverse global warming, it by no means follows that we lack jurisdiction to decide whether EPA has a duty to take steps to slow or reduce it.