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Washington Watch

Will Last Week's Positive Supreme Court Decision Ultimately Lead To an Ironic Result?

Justice Kennedy Thwarts the Gutting of Environmental Law for 2nd Time This Term

High Court Faults EPA Inaction on Emissions

With the Supreme Court ruling that the Environmental Protection Agency must consider regulations of greenhouse gas emissions, the stage is now set for a bigger environmental decision regarding global warming. But now Better World Club wonders: will this positive decision of the Court ultimately have an ironic impact on these state efforts?

Given the EPA's failure to take a strong stand on the issue, BWC has been working in support of state efforts to regulate auto greenhouse gas emissions. Ten states have taken the lead on greenhouse gas emissions, but the auto industry - and the Bush administration - challenged those states by asserting that their laws were preempted by EPA regs (despite there being no EPA regs concerning global warming).

Now, with the Court telling the EPA to live up to its responsibilities, the question is: will the EPA promulgate inadequate regs and give the auto industry greater incentive to argue that these regulations should pre-empt the states' regulations?

Of course, such a decision doesn't necessarily follow. It's not at all legally clear that stronger state regs cannot co-exist with EPA regs, but this is the decision that the Court will ultimately have to make.

Still, from a pure Court-watching point of view, it's hard not to savor the most recent environmental victory. It is also noteworthy that, for the second time this year, the decision turned on the judgment of just one justice: Anthony Kennedy, a Ronald Reagan selection.

Earlier this term, Kennedy refused to go along with Justices Scalia, Alito, Thomas, and Roberts, who wanted to "gut" the Clean Water Act, as National Public Radio put it. This time, Kennedy was the swing vote that the EPA was not meeting its statutory obligations.