I discuss my view of the recent orals on the global warning case here. An overall point that some seemed to miss is that the case is about alleged abuse of discretion -- not just trying to get the courts involved in a policy dispute -- saying that assumes the case, in effect. Putting aside standing (as noted by Judge Tatel below, the presence of a state as litigant helps here), which might make the matter moot, my knee-jerk feeling is that the state environmental litigants have a stiff hill to climb, but that it is not some slam-dunk matter. Overall, the matter is important, but should not cloud the law at stake. A rather trivial agency matter could legally fall the same way.
[From the oral argument transcript: "We are not asking the Court to pass judgment on the science of climate change or to order EPA to set emission standards. We simply want EPA to visit the rulemaking petition based upon permissible considerations."]
Having watched the main C-SPAN discussion (not the Q&A) in full, I would just add that such remarks as addressed here seem particularly off-putting. The panel was made up of experts, but did not address the cost/benefit analysis in such a way either. Reading the controlling appellate decision also appears telling in this area. Thus, the now standard "let's bash Dahlia Lithwick as an idiot" meme is overblown, though her flippant tone at times arguably invites such scorn. And, I again think some people expect too much from short generalist non-expert pieces of this sort. [The person replied, admitting a little too much pique, and overall added an interesting perspective to the debate.]
The fray debate includes people dubious about the very problem of global warning. I have read up on the topic somewhat, you know not just watching Gore's movie, and this seems rather dubious. A stronger case can be made on debating how to deal with the problem. But, questioning the issue ... even suggesting "warming" is a good thing, when it often surely is not (common sense examples can be supplied), is unfortunate at best. Finally, some question if carbon dioxide (the petitioners also referenced methane, nitrous oxide, and hydrofluorocarbons, but focused on carbon dioxide) fits the statutory definition. Per Judge Tatel's dissent (one judge focused on uncertainty, the other standing):
The term 'air pollutant' means any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive . . . substance or matter which is emitted into or otherwise enters the ambient air.
Now, maybe, the matter in context is somewhat different, though during the panel discussion someone without rebuttal noted that the argument seemed not to be taken very seriously even by the government. But, this seems rather clear. Is the idea that a "pollutant" can't be something that is in some forms benign? Few things are totally malign. I don't think this argument holds water, but it will take more research than I really care to partake to prove the point. Still, reading the transcript, including attempts to focus on "ambient air," doesn't convince either.
Anyway, Stevens had an interesting comment as too uncertainty: "I find it interesting that the scientists whose worked on that report said there were a good many omissions that would have indicated that there wasn't nearly the uncertainty that the agency described." In a follow-up, he basically suggested the scientists thought there was cherry-picking of the material to cloud the issue. But, hard to prove that in court, especially one that doesn't want to hear.
Again, seems like something best clarified by Congress, who might now be more open to doing so -- the firming of the evidence in the last few years only helped matters.