Judicial Activism in Overdrive: Massachusetts, et al, v. EPA

August 31 is the deadline for filing the petitioners’ brief with the Supreme Court in Massachusetts et al. v. U.S. Environmental Protection Agency. Plaintiffs, who include the attorneys general (AGs) of 12 states, are suing the EPA to regulate carbon dioxide (CO2) emissions from new motor vehicles (See July 2006, Page 10).

A victory for plaintiffs would not only result in fewer choices for U.S. auto buyers and a less competitive U.S. auto industry, it would also establish the precedent for judicial imposition of economywide CO2 controls like those proposed in the Kyoto Protocol and the McCain-Lieberman Climate Stewardship Act. Plaintiffs’ game plan, which the Court can either aid and abet or nip in the bud, aims at nothing less than litigating America into compliance with a non-ratified treaty and/or a non-enacted bill. This is judicial activism in overdrive, perhaps the most audacious attempt ever to legislate from the bench.