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Re: The Climate Litigation Danger
Eric, 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 considered
your line of reasoning in its April 2007 decision, and flatly rejected
it in the context of its standing analysis. Citing the EPA's argument that global warming is fueled in large
part by China and India, it responded (at 20-22):
EPA overstates its case. Its argument rests on the erroneous
assumption that a small incremental step, because it is incremental,
can never be attacked in a federal judicial forum. Yet accepting that
premise would doom most challenges to regulatory action. Agencies, like
legislatures, do not generally resolve massive problems in one fell
regulatory swoop. ... "[A] reform may take one step at a time,
addressing itself to the phase ofthe problem which seems most acute to
the legislative mind" . . . . They instead whittle away at them over
time, refining their preferred approach as circumstances changeand as
they 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.
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