In a new post on Reason's Volokh Conspiracy, law professor Jonathan Adler pushes back against Ben Zycher's critique of Adler's earlier essay on the EPA's decision to rescind the Clean Air Act's greenhouse gas "endangerment finding." Zycher, writing in Regulation, had called Adler's argument "deeply problematic." Adler responds that Zycher's legal analysis contains a serious error: Zycher claimed that Section 202(a) replaces the phrase "cause or contribute significantly" with "reasonably be anticipated to endanger public health or welfare."
Adler says that is simply wrong. Reading the statutes side by side, he notes, both Section 111 and Section 202(a) contain the "reasonably be anticipated to endanger public health or welfare" language word for word. The relevant difference is that Section 111 applies to stationary source categories that "cause, or contribute significantly to" such pollution, while Section 202(a) applies to new motor vehicles that "cause, or contribute to" it. The absence of "significantly" in Section 202, Adler argues, is what matters for the EPA's authority to regulate greenhouse gases from vehicles.
Adler also rejects Zycher's claim that Section 202 requires the Administrator to find that emissions from new motor vehicles themselves endanger public health. The statutory text, he says, requires only that the vehicles "contribute to" air pollution that may reasonably be anticipated to endanger public health or welfare. Adler acknowledges that Zycher may think this reading is irrational or unwise, but he insists that does not change what the law says. He closes by suggesting that before accusing someone else of ignoring statutory language, Zycher should read the statute carefully himself.