Today, Justice Anthony Kennedy was the swing vote in
Massachusetts vs. EPA, clearing the way for the EPA to regulate greenhouse gas emissions.
The Roberts dissent focused on the constitutional issue of Massachusetts as a petitioner and that no direct injury could be cited.
The Scalia dissent focuses on the “capacious” definition of ‘air pollutant’ under the Clean Air Act as hinging on the word “including; “Any air pollution agent or combination of such agents, including any physical, chemical, ... substance or matter which is emitted into or otherwise enters the ambient air.” He posits that what follows “including” is not a subset of what precedes “including” and that the petitioner and the Court ignored the first part of the definition.
His footnote: “It follows that (ital.) everything (end ital.) airborne, from Frisbees to flatulence, qualifies as an ‘air pollutant.’ This reading of the statute defies common sense.”