Environmental law and timing...

This MSNBC article profiles an environmental case that the Supreme Court has accepted for the October 2006 term.

The case involves regulation of greenhouse gases by the Environmental Protection Agency (EPA). The Plaintiffs - including a number of environmental groups, 18 states, and two of the biggest power generators in the United States (Entergy and Calpine) - argue that the EPA should be regulating greenhouse gases like carbon dioxide. (Entergy and Calpine are arguing FOR regulation for both environmental (secondary) and market certainty (primary) reasons. They're in the process of building the next generation of power plants, and are seeking to have certainty in the regulatory environment.) The Bush administration EPA disagrees, and argues that lawmakers did not intend the Clean Air Act to include regulation of greenhouse gasses.

The Plaintiffs claim that the case is simply about the plain language of the Clean Air Act, which according to this interview states that:

Congress said two things: "An air pollutant is anything. Quite literally any chemical, physical or biological substance that's emitted into the air is an air pollutant."

Congress said, "Thou shalt regulate any pollution if it is anticipated to endanger health or welfare—if it has an adverse effect, including adverse effects on climate and weather."

I do not have the expertise to know if the plain language of the Clean Air Act is this clear, or this broad. My question about this case is relatively simple - is the future of the EPA's regulation of greenhouse gases contingent upon the timing of this lawsuit? What I mean by that is it appears to me that the current configuration of the Supreme Court is not going to be very friendly to the Plaintiffs here. The Court (driven by Justice Scalia) has tended to limit the EPA's regulation of areas (specifically waterways) that the EPA WANTED to regulate - why would they be open to forcing to the EPA to regulate in an area it (at least this current political configuration of the EPA) doesn't want to? I can't see this claim being successful with this Supreme Court, no matter how plain the language may appear.

But, this interview addresses that possibility at the end:

What if you lose?
Then it just increases pressure on Congress, I think. Then we've done our job and we've tried to do whatever we can through the courts. Presumably we pay our representatives and senators to address the tough questions. They don't get any tougher than this.