Texas Wesleyan Law Review

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Regardless of whether you believe that human activities cause or contribute to global warming, regulatory action seeking to mitigate the future consequences of climate change will impact the lives of every American. On January 2, 2011, U.S. Environmental Protection Agency ("EPA") regulation of greenhouse gas emissions from stationary sources took effect. The EPA rule implementing this regulation is the conclusion, for the time being, of a sequence of recent judicial and administrative activities comparable to a regulatory domino effect. The Supreme Court started the cascade of regulation in Massachusetts v. EPA, in which the Court held that the EPA has the authority to regulate greenhouse gas emissions under the Clean Air Act if further evaluation indicated greenhouse gases were endangering public health and mobile sources were contributing to the threat. Under President Obama's guidance, the EPA finalized that Endangerment Finding and concluded human health was threatened by greenhouse gas emissions from mobile sources. Subsequently, the EPA published three codependent directives to regulate greenhouse gases under the Clean Air Act: (1) the Tailpipe Rule to regulate emissions from mobile sources; (2) an official interpretation of the Clean Air Act, concluding that when greenhouse gases are "actually regulated" under the Tailpipe Rule, stationary sources are also subject to regulation; and (3) the Tailoring Rule, a revision of statutory thresholds aimed at shielding small sources from rigorous Clean Air Act permitting requirements. In light of the unique challenges presented by global climate change, this Comment analyzes whether the EPA's Tailoring Rule is lawful under existing statutory authority. According to the express language of the Clean Air Act, congressional intent underlying the statute, and legal precedent, the EPA's Tailoring Rule represents an unauthorized expansion of EPA authority and is an arbitrary use of the Clean Air Act to regulate greenhouse gases. Because the Tailoring Rule violates the unambiguous language of the Clean Air Act, subverts the congressional intent underlying the Act, infringes upon the separation of legislative and executive powers, and relies improperly upon the disfavored legal doctrines, the Tailoring Rule should fail judicial review.



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