1) Will the EPA be allowed to limit or defer substantive regulation based on:

a) the uncertain degree of human caused global warming via greenhouse gases?

b) the additiional uncertainty of the scope and specific regional impact of climate changes (e.g. the impact in the US may not be serious compared to other countries)?

c) the additional uncertainity over the positive vs negative health and safety impacts in the US?

d) the uncertainity of the effectiveness of mitigation for Americans in a world-wide enviroment?

e) Can the EPA promote geo-engineering and adaptation rather than prevention as the most effective strategy?

Under the cover of legal reasoning, I smell a particular distaste for clear guides, enviromental economics and/or even cursory cost-benefit analysis as applied to human well-being. What does, for example, “unacceptable risk” mean EXCEPT that amount of risk tolerance specifically expressed via a Congressionally imposed standard in law – rather than expecting an agencies subjective impression of the political winds?

The IPCC said it is very likely that continued warming is from human generated greenhouse gases. If so, it is likely that the climate will substantively change. If so, it is likely that there will be a mix of winner’s and losers. If so, it may be more likely than not there will be more winner’s than losers but we are very uncertain on the balance and who will net/lose…as well as to the degree and timing of win/loss.

We also don’t know if prevention is worthwhile, or if adaptation and later geo mitigation is far more effective.

None the less, I sense that if the EPA found that the impacts, risks, costs, and effectiveness of current strategies to affect climate in the year 2075 make it unreasonablely expensive and unproductive to impose limits, the Supreme Court would care less.

d) reasonable cost benefits?

The National Environmental Policy Act, for example, has no firm prohibitions or standards. It requires governments merely to evaluate the environmental impact of major governmental actions and consider them thoughtfully. But, it has arguably produced more beneficial results than such tough, rule bound approaches as CERCLA’s cost recovery provisions.

The reality is that if EPA administrators are forced to remove their political hats and put on their engineering hats, that once they admit that the problem exists they will look at a lot of options for dealing with it, identify the major controllable contributors to the problem, and issue some sort of regulation or mandate or plan to deal with it that will have some effect.

This case, like a lot of EPA administrative cases, is basically a power play within the agency, and once won, something will happen. Even if the new standard is simply a “don’t make things worse” standard, and that replaces low single digit growth in relevant emissions each year, over a couple of years, the impact could be material.