“For instance, given Mass v. EPA it is difficult to argue that the EPA Administrator was wrong to conclude that the emission of greenhouse gases cause or contribute to air pollution that could be reasonably anticipated to threaten health or welfare. Yet this is one of the claims the industry groups have to make if they are to succeed.”
This is simply wrong. It is rare for a litigant to convince a court to overturn the factual findings of a regulator, and that is not what the plaintiffs are doing in the litigation against the EPA. What they are challenging is HOW the EPA reached its conclusions on endangerment. The argument is that the EPA did not follow its own rules requiring it to do the work itself, instead relying completely on the conclusion of a non-scientific body, the IPCC.
By basing its conclusions on the IPCC’s “assessment” of climate science, the EPA effectively delegated part of its rule making function to a non- US, non-governmental, non-scientific body. That is grounds for reversing the rules. This appellate case is mostly irrelevant, the final legal decision will be made by the Supreme Court. Can the four progressives on the court, plus the often progressive Justice Kennedy, ignore the requirements of EPA’s own rules? Why of course they can.
The final real decision will be made at the ballot box this November. What the EPA takes away, the Congress can give back. But only if Republicans don’t screw it up, which they could very well do. Heck, they’re about to nominate the one candidate who can’t make any argument against the socialization of medicine in Obama care, which was the main reason they gained so much in 2010. So the court case looks more important than ever now.