Justice Kennedy abandoned his conservative brethren and joined the “do-gooder, let’s pretend like we’re climatologists” fray to make the majority in Massachusetts v. Environmental Protection Agency, No. 05–1120, 127 S. Ct. 1438 (Apr. 2, 2007).

As usual, Justice Scalia & Co. is a reasoned, straight-up admin. law analysis, while Justice Stevens (who I believe was appointed by President Pierce just after Texas was admitted into the Union) attempts to base his holding on scientific matters which are still much in debate.


I forget, which emanation and penumbra does global warming now fall under?

Justice Kennedy is the new SDOC, plain and simple.

From Justice Stevens’ majority opinion (joined by Kennedy, Souter, Breyer, and Ginsburg, J.J. ): “A well-documented rise in global temperatures has coincided with a significant increase in the concentration of carbon dioxide in the atmosphere . . . EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change.”

Justice Scalia’s dissent (joined by Roberts, C.J., Thomas, and Alito, J.J.): “The Court’s alarm over global warming may or may not be justified, but it ought not distort the outcome of this litigation. This is a straightforward administrative-law case, in which Congress has passed a malleable statute giving broad discretion, not to us but to an executive agency. No matter how important the underlying policy issues at stake, this Court has no business substituting its own desired outcome for the reasoned judgment of the responsible agency.”

Thx to Chief Roberts, and Justices Scalia, Thomas, and Alito