1. PUBLIC LAW Judicial Review
Guest Lecture
Prof. McLeod-Kilmurray
Oct. 28, 2011

2. ADMINISTRATIVE LAW
1) enabling
2) oversight

3. Applicant/individual affected
Government decision-maker
General public

4. Rule of Law and Separation of Powers
Legislative Branch
Executive Branch
Judicial oversight

5. THEMES PRINCIPLES of administrative law
The MEANS of attacking governmental decisions
RECENT EXAMPLES of JR

6. JUDICIAL REVIEW
Definitions
purposes

7. Grounds for challenging government action by JR
JUSTICIABILITY
PROCEDURAL grounds
SUBSTANTIVE review
Errors of fact
Errors of law
Errors of discretion

8. PROCEDURAL FAIRNESS 1) Audi alteram partem 2) Nemo Judex
Right to know the case against you
Right to be heard
Can include:
Right to notice
Right to a hearing
Right to counsel
Right to reasons
2) Nemo Judex
right to be judged by an impartial arbiter (bias, etc)
STANDARD of REVIEW is always correctness

9. SUBSTANTIVE REVIEW 3 standards of review: the Spectrum
INCREASING deference ---->
*_________________*__________________*
correctness reasonableness patent
simpliciter unreasonableness

10. Pragmatic and Functional test (old test) Baker
FACTORS:
1) privative clause?
2) expertise
3) purpose of Act and this provision
4) nature of problem – Q of fact, law or mixed?

11. Dunsmuir 2008 SCC 9 The PURPOSES of JR
1) observing the rule of law
making sure decision-makers stay with the LIMITS of the legal powers given to them by Parliament (Crevier, Dr Q)
make sure administrative PROCESS and OUTCOMES are:
legal
reasonable
fair
2) maintaining legislative supremacy
legislature tells courts WHICH BODY should decide a matter
legislature tells courts what standard of review to apply

12. Dunsmuir “Standard of Review Analysis”
1) has the standard of review for THIS decision maker on THIS category of question ALREADY been established by caselaw?
If so: just ADOPT this standard and apply it
If NOT: 2) apply the LIST OF FACTORS

13. Dunsmuir: “Standard of Review Analysis”
FACTORS:
Presence or absence of a privative clause
Purpose of the tribunal as determined by interpretation of the enabling legislation
The nature of the question at issue
The expertise of the tribunal

14. STRONG Privative Clause
Ontario Labour Relations Act, 1995
Jurisdiction
114.  (1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes
Board’s orders not subject to review
116.  No decision, order, direction, declaration or ruling of the Board shall be questioned or reviewed in any court, and no order shall be made or process entered, or proceedings taken in any court, whether by way of injunction, declaratory judgment, certiorari, mandamus, prohibition, quo warranto, or otherwise, to question, review, prohibit or restrain the Board or any of its proceedings.

15. WEAK Privative Clause Veterans Review and Appeal Board Act
Decision of majority
31. A decision of the majority of members of an appeal panel is a decision of the Board and is final and binding.

16. CORRECTNESS
“constitutional question regarding the division of powers between Parliament and the provinces” (para 58)
a “TRUE question of jurisdiction or vires” – (para 59) ‘Jurisdiction’ is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry”
a “question of GENERAL LAW ‘that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise” – “such questions require uniform and consistent answers” (parag 60)
a question “regarding the jurisdictional lines between two or more competing specialized tribunals” (parag 61)

17. REASONABLENESS Parag 47:
“Reasonableness is a deferential standard … certain questions that come before admin tribs do not lend themselves to one specific, particular results. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions.”

18. A court conducting a review for reasonableness inquires into the QUALITIES that make a decision REASONABLE, referring to
both the PROCESS or articulating the reasons
and to OUTCOMES.
In judicial review, reasonableness is concerned mostly with the existence of
JUSTIFICATION,
TRANSPARENCY and
INTELLIGIBILITY within the decision-making PROCESS.
“But it is ALSO concerned with whether the decision falls within a range of possible, acceptable OUTCOMES which are defensible in respect of the facts and law.”

19. Applying Dunsmuir

20. Canada v. Khosa JR of Immigration Appeal Division decision
SOR analysis:
FCTD - patent unreasonableness
FCA - majority - reasonableness
- minority - patent unreasonableness
SCC – majority - reasonableness
- minority - correctness

21. Khosa 2005 FC 1218 (pre-Dunsmuir)
FCTD:
“ The standard of review for decisions of the IAD on appeals under paragraph 67(1)(c), and the corresponding provisions of the former legislation, has consistently been characterized as patently unreasonable.”
Pragmatic and functional test:
Each of the four factors, when applied to this proceeding, generally argues for curial deference.
1) the IAD decision is not shielded by a privative clause nor subject to any appellate process. However, judicial review is available but only on the granting of leave.
2) The IAD has developed expertise in appeals based on humanitarian and compassionate considerations and an analysis of the Ribic factors for over two decades.
3) …the purpose of the statutory provision… While the IAD decision relates to the rights and interests of an individual as opposed to those of the state, the relief sought constitutes an exemption from the usual consequences of the removal order.
4) Finally, the principal issue for determination in this application for judicial review is whether the IAD erred in its appreciation of the evidence, taking into account the several Ribic factors. Again, the nature of the problem is substantially, if not completely, factual.
the appropriate standard of review = patent unreasonableness.

22. Khosa 2007 FCA 24 (pre-Dunsmuir) Majority
“An examination of recent Supreme Court of Canada rulings on H & C decisions leads me to conclude that the standard should be reasonableness.”
9 Rehabilitation is a criminal law concept with respect to which the Board cannot be said to have particular expertise. …the Board should as a minimum pay deference to the findings of the criminal courts, i.e. it should explain why it is that rehabilitation has ceased to be a possibility.
10. Deference to the criminal courts is rooted in the complexity of the task required in assessing the danger to the public that a particular offender represents. In the same way that provincial courts of appeal will show deference to the sentencing decisions made by trial judges, the IAD should be wary of questioning findings made by criminal courts on matters that fall squarely within their realm of expertise.

23. “I have therefore reached the view that the standard of review is reasonableness, essentially because
- the decision is not protected by a full privative clause,
- is not a polycentric one,
- relates to human interests
- and does not, in so far as the possibility of rehabilitation factor is concerned, engage the Board's expertise.”

24. APPLYING the reasonableness standard:
Fixates on fact offence was related to street racing
Under-emphasize the other factors they have to consider, e.g. rehabilitation, remorse, re-offending
“ In other words the Board fails to do in full the exercise that it is mandated to do and which it itself stated it would be doing.”

25. FCA Dissent
1) the leave and the certification clauses - neither a privative clause nor a right of appeal – somewhere in the middle – no help in determining SOR
2) that the expertise of the IAD lies in accurately evaluating whether the criteria for an exemption on compassionate and humanitarian considerations have been met. This is the type of determination that the IAD is regularly called upon to make. The inquiry is highly fact-based and contextual and "involves a considerable appreciation of the facts of that person's case, and is not one which involves the application or interpretation of definitive legal rules.“The Federal Court has greater expertise than the IAD on questions of law. It does not, however, have greater expertise than the IAD on questions of fact. The IAD is in a better position than the Court to appreciate and weigh the evidence and to make findings on credibility and trustworthiness. - Said IAD developed and has been applying the Ribic factors for over 15 years.

26. 3) intent of Parliament to grant to the IAD a broad discretion to allow permanent residents facing removal orders to remain in Canada if it would be equitable to do so: Chieu at paragraph 66. The fact, however, that the matter to be decided is not polycentric, since it relates directly to the rights and interests of an individual in relation to the government rather than the balancing of interest of various constituencies, may diminish the expected deference.

27. 4) the question of whether an individual is entitled to an exemption on compassionate and humanitarian considerations is a question of mixed fact and law, which relates to the application of a legal test to the facts of the case. Questions of fact and questions of mixed fact and law are entitled to a high level of deference.
CONCLUSION:” Considering that the second and the fourth factors (expertise and nature of the question, respectively) weigh in favour of a high level of deference and that the third factor (purpose of the legislation) gives a wide discretion to the IAD, I conclude that the appropriate standard is that of patent unreasonableness.”

28. Khosa 2009 SCC 12 CONCURRING – Rothstein, J.
Where JR is based on LEGISLATION, as in case of Federal Court, and there IS a privative clause in the enabling act, c.l. such as Dunsmuir does not apply
S tells us the appropriate SOR
FACTUAL questions – SOR = very deferential
OTHER questions - CORRECTNESS

29. “ 72. The language of s. 18.1(4)(d) makes it clear that findings of FACT are to be reviewed on a highly deferential standard. Courts are only to interfere with a decision based on erroneous findings of fact where the federal board’s…factual finding was ‘made in a perverse or capricious manner or without regard to the material before it.’ By contrast … there is no suggestion that courts should defer in reviewing a question that raises any of the other criteria in s. 18.1(4). …
The language and context of s. 181.(4), and in particular the absence of deferential wording, demonstrates that a CORRECTNESS standard is to be applied to questions of:
jurisdiction
natural justice
law and
fraud.

30. Khosa 2009 SCC 12 - MAJORITY
“Dunsmuir teaches that JR should be less concerned with the formulation of different standards of review and more focused on the substance, particularly on the nature of the issue that was before the administrative tribunal under review.
Here, the decision of the IAD required the application of broader policy considerations to the facts as found to be relevant, and weighed for importance, by the IAD itself.
The question whether Khosa has shown ‘sufficient H & C considerations’ … was a decision Parliament confided to the IAD, not to the courts.

31. “most if not all JR statutes are drafted against the background of the common law of JR.”
“Despite Dunsmuir, ‘patent unreasonableness’ will live on in B.C.” (Admin. Tribs Act s. 58(2)(a): “a finding of fact or an exercise of discretion by the tribunal in respect of a matter over which it has exclusive jurisdiction under a privative clause must not be interfered with unless it is patently unreasonable”)

32. - s of the FCAct must be sufficiently elastic to apply to the decisions of hundreds of different ‘types’ of administrators…It cannot have been Parliament’s intent to create by s … a single rigid Procrustean standard of decontextualized review for all “federal boards, commissions…”.

33. - “s generally sets out the GROUNDS which permit but do not require the court to grant relief. Whether or not the court SHOULD exercise its discretion in favour of the application will depend on the court’s appreciation of the respective roles of the courts and the administration as well as the ‘circumstances of each case’.”

34. “I conclude that on general principles of administrative law, including … Dunsmuir, the applications judge was right to give a higher degree of deference to the IAD decision ...
In my view, the majority decision of the IAD was within the range of reasonable outcomes and the majority of the FCA erred in intervening in this case to quash it.”
62: “Whether we agree with the particular IAD[‘s H & C] decision or not is beside the point. The decision was entrusted by Parliament to the IAD, not to the judges.”

35. Commentary and follow up on Dunsmuir
Great Lakes United v MOE, 2009 FC 408
Attaran v Can (MFA), 2009 FC 339
Friends of Lansdowne Inc. V. Ottawa (City)2011 ONSC 4402

36. Great Lakes United v MOE, 2009 FC 408
Nature of discretion: parag. 177: “sections 48 and 50 [of CEPA] allow the Minister a discretion to establish and report ‘any other inventory of information’ which would include separate sectorial inventories, but the Minister MUST establish a “national inventory of releases of pollutants” that will contain information collected under section 46 and “any other information to which the Minister has access.” I do not see how section 48 can be read to permit a sectorial or any other multiplication of ‘national’ inventories. In other words, I believe the Minister is wrong if he interprets section 48 as allowing him to establish separate ‘national’ inventories of releases of pollutants of different sectors, although it obviously permits him to establish separate sectorial inventories IN ADDITION TO a national inventory.” … It also seems to me that the ‘national inventory’ established under section 48 MUST contain releases of pollutants’.”
Parag 185 “The record reveals to me a general recognition that the information at issue in this application should be collected and reported.”

37. SOR – this analysis IS NOT DONE UNTIL parag 237 of the decision
Parag 239: “The applicant in Environmental Resource Centre v. Canada (MOE) 2001 FCT 1423 argued at parag. 52 that ‘Failure to comply with a mandatory requirement is an error of law reviewable on a standard of correctness.” Therefore, based on the caselaw, I agree … that the standard of review on the failure to comply with the statutory requirement in this case is correctness.”
Remedy: ORDERS mandamus: “the Minister is directed to publish pollutant release information to the public through the NPRI in relation to releases and transfers to tailings and waste rock disposal areas by mining facilities for the 2006 and subsequent reporting years in acc. With s. 48 and 50 of CEPA.”

38. Court REJECTED government arguments that this was not reviewable because it was a legislative or policy decision (parag )
Parag 223: “Section 50 makes it clear that the national inventory established under s. 48 ‘SHALL’ be published. The MANNER of publication is for the Minister’s discretion. But nowhere do I read that a discretion concerning the manner of publication can be used to forestall or avoid the publication of a national inventory of released pollutants that includes information readily accessible to the Minister under section 46. That appear to be what has happened on the record placed before me.”
ALSO emphasize the PURPOSES of CEPA and of the NPRI

39. Attaran v Can (MFA), 2009 FC 339
Parag 28 : “the FCA has rules that the reviewing court must apply different SORs at different stages in determining the legality of a refusal of a government institution to disclose a record.”
29. “The applicant and respondent agree that in light of the SCC’s ruling in Dunsmuir, there are now only 2 SORs… and that as a result, if a reviewing court determines that the ATIA (Access to Info Act) dopes confer discretion on the Minister to refuse to disclose a particular record, the Minister’s use of that discretion must be reviewed on a reasonableness standard.”

40. APPLYING reasonableness:
Parags 46-51
Parag 48 “The Court cannot ignore, discount or substitute the Court’s opinion for the clear evidence and opinion of a commander in the Canadian forces and a senior official at the DFAIT that public disclosure of the redactions in these documents can reasonably be expected to be injurious to the conduct of Canada’s international affairs with Afghanistan. …”

41. Friends of Lansdowne
Challenging legality of by-laws and resolutions of Ottawa City Council

42. [11]           As noted, the applicant argues that the City’s decision in enacting the by-law approving the LPP project was illegal due to bad faith, breach of the City’s procurement by-law and as constituting a bonus contrary to s. 106 of the Municipal Act.  The latter two arguments, as will be discussed, involve a substantial factual component and on the record in this case are properly viewed as mixed questions of fact and law.  As such, a deferential standard of review is called for, namely reasonableness, see Dunsmuir v. New Brunswick, 2008 SCC 9 (CanLII), 2008 SCC 9, [2008] 1 S.C.R. 190.  Moreover, the controlling authorities as discussed below have been very clear in stating that the decisions of democratically elected municipal councils are to be accorded substantial deference. 

43. The Municipal Act itself says so: “272
The Municipal Act itself says so: “272.     A by-law passed in good faith under any Act shall not be quashed or open to review in whole or in part by any court because of the unreasonableness or supposed unreasonableness of the by-law.”
Judicial precedent says so

44. WHJY? Parag. 16: “After a lengthy process involving numerous studies, public consultations, experts’ reports including legal opinions, presentations and debates at City Council, and a review of the LPP by the City’s Auditor General, assisted by his own consultants, City Council voted to approve the initial stages of this public private partnership.  Inherent in this process and in the approval of the by-law (by-law ), were a number of policy decisions.  ... This court has no jurisdiction to pass on the wisdom or the reasonableness of these policy decisions and to the limited extent that the court may legitimately intervene, a generous deferential standard of review is required.

45. YOUR TURN TO TRY IT

46. Pembina Institute for Appropriate Development v Canada (A. G
Pembina Institute for Appropriate Development v Canada (A.G.) FC 302
Environmental Assessment Act
Expert panel appointed to do environmental assessment of proposed tar sands project in Alberta
Panel recommended that the project be approved because, WITH mitigation measures in place, Panel believed project not likely to cause significant adverse environmental effects

47. What would you argue? If you were the ENGO?
If you were the respondent government?

48. Court’s Reasons
“all parties agree that to the extent that the issues involved the interpretation of the Canadian Environmental Assessment Act, they are reviewable on a standard of correctness. However, issues relating to weighing the significance of the evidence and conclusions drawn from that evidence including the significance of an environmental effect are reviewed on the standard of reasonableness simpliciter.”

49. Standard of Review
“Whether or not the Panel has provided a rationale for its conclusions and recommendations is a question of law, reviewable on a standard of correctness.”

50. Expertise and Deference
“I am fully aware of the level of expertise possessed by the Panel. The record shows that they had ample material before them relating to the issue of greenhouse gas emissions and climate change, and thus any articulated conclusions drawn from the evidence should be accorded a high measure of deference. HOWEVER, THIS DEFERENCE TO EXPERTISE IS ONLY TRIGGERED WHEN THOSE CONCLUSIONS ARE ARTICULATED.”

51. “The evidence shows that intensity-based targets place limits on the amount of greenhouse gas emissions per barrel of bitumen produced. The absolute amount of greenhouse gas pollution from oil sands development will continue to rise under intensity-based targets because of the planned increase in total production…The Panel dismissed as insignificant the greenhouse gas emissions WITHOUT ANY RATIONALE…Without this vital link, the clear and cogent articulation of the reasons behind the Panel’s conclusion, the deference accorded to its expertise is not triggered.”

52. Kyoto Protocol Implementation Act

53. S. 5: “5. (1) Within 60 days after this Act comes into force and not later than May 31 of every year thereafter until 2013, the Minister shall prepare a Climate Change Plan that includes
(a) a description of the measures to be taken to ensure that Canada meets its obligations under Article 3, paragraph 1, of the Kyoto Protocol, including measures respecting
(i) regulated emission limits and perform­ance standards,
(ii) market-based mechanisms such as emissions trading or offsets,
(iii) spending or fiscal measures or incentives,
(iii.1) a just transition for workers affected by greenhouse gas emission reductions, an
(iv) cooperative measures or agreements with provinces, territories or other governments;

54. (b) for each measure referred to in paragraph (a),
(i) the date on which it will come into effect, and
(ii) the amount of greenhouse gas emission reductions that have resulted or are expected to result for each year … ;
(c) the projected greenhouse gas emission level in Canada for each year from 2008 to 2012, taking into account the measures referred to in paragraph (a), and a comparison of those levels with Canada’s obligations under Article 3, paragraph 1, of the Kyoto Protocol;
(d) an equitable distribution of greenhouse gas emission reduction levels among the sectors of the economy that contribute to greenhouse gas emissions;
(e) a report describing the implementation of the Climate Change Plan for the previous calendar year; and
(f) a statement indicating whether each measure proposed in the Climate Change Plan for the previous calendar year has been implemented by the date projected in the Plan and, if not, an explanation of the reason why the measure was not implemented and how that failure has been or will be redressed.

55. What would you argue if you were :
FOE?
Government?

56. FOE Factum

57. “This case raises the fundamental question of whether a Minister of the Crown is accountable for ignoring the will of Parliament.”
“24. In the present case, there are no written reasons by the Minister to which the Court can defer.1 It is simply a question of whether the Minister’s Plan complies with s.5 of the KPIA. There is no privative clause, and the Minister has no greater expertise than the Court on the issues raised – they are purely questions of jurisdiction and statutory interpretation. As such, the standard of correctness applies.”

58. “27….While the Minister may have expertise and discretion in determining the measures that should be included in a Climate Change Plan, the question of whether the Minister’s Plan complies with the KPIA is purely a legal one, subject to the supervision of the courts.”
“35. …The will of Parliament is paramount and no administrative or executive authority is entitled to contravene it, whether directly or indirectly. The courts have recognized that rule of law is entrenched as "the fundamental right of the public to government in accordance with the law" it as "a corner stone of our democratic form of government", guaranteeing "the rights of citizens to protection against arbitrary and unconstitutional government action".”
“38. This arbitrary state action of defying the will of Parliament by refusing to comply with the requirements in s. 5 of the KPIA constitutes an affront to executive accountability and the legitimacy of the Canadian system of government.”

59. Government Factum
Parag. 1 & 2

60. Friends of the Earth v. Canada (Governor in Council) 2008 FC 1183
[6]     FoE argues that the language of sections 5, 7, 8 and 9 of the KPIA is unambiguous and mandatory. It says that the respondents have refused to carry out the legal duties imposed upon them by Parliament and they have each thereby acted outside of the rule of law.
[7]     The respondents assert that the statutory duties that are the subject of these applications are not justiciable because they are not properly suited or amenable to judicial review. In particular, the respondents say that the KPIA creates a system of Parliamentary accountability involving scientific, public policy and legislative choices that the Court cannot and should not assess. In short, they assert that their accountability for their failure to fulfill Canada’s Kyoto obligations will be at the ballot box and cannot be in the courtroom.

61. II.      Issues
[18]    (a)  What is the standard of review for the issues raised by these applications?
1. Does FoE have standing to bring these applications?
2. Does section 5 of the KPIA impose a justiciable duty upon the Minister to prepare and table a Climate Change Plan that is Kyoto compliant?
3. Do sections 7, 8 and 9 of the KPIA impose justiciable duties upon the GIC to make, amend or repeal environmental regulations within the timelines therein stated?

62. Standard of Review
[19]    I agree with counsel for the respondents that the issue of justiciability is a threshold question of law which is not the proper subject of a standard of review analysis. The KPIA either imposes the legal duties postulated by FoE or it does not and no question of deference arises on that issue.

63. JUSTICIABILITY
[31]    The justiciability of all of these issues is a matter of statutory interpretation directed at identifying Parliamentary intent: in particular, whether Parliament intended that the statutory duties imposed upon the Minister and upon the GIC by the KPIA be subjected to judicial scrutiny and remediation.

64. (33) …Instead section 5 couples the responsibility of ensuring Kyoto compliance with a series of stated measures some of which are well outside of the proper realm of judicial review. For instance, subparagraph 5(1)(a)(iii.1) requires that a Climate Change Plan provide for a just transition for workers affected by greenhouse gas emission reductions and paragraph 5(1)(d) requires an equitable distribution of reduction levels among the sectors of the economy that contribute to greenhouse gas emissions. These are policy-laden considerations which are not the proper subject matter for judicial review. That is so because there are no objective legal criteria which can be applied and no facts to be determined which would allow a Court to decide whether compliance had been achieved.
[34]    It is not appropriate for the Court to parse the language of section 5 into justiciable and non-justiciable components, at least, insofar as that language deals with the content of a Climate Change Plan. This provision must be read as a whole and it cannot be judicially enforced on a piecemeal basis.  While the failure of the Minister to prepare a Climate Change Plan may well be justiciable, an evaluation of its content is not.

65. 35. …The Act contemplates an ongoing process of review and adjustment within a continuously evolving scientific and political environment. It refers to cooperative initiatives with third parties including provincial authorities and industry. These are not matters that can be completely controlled by the Government of Canada such that it could unilaterally ensure Kyoto compliance within any particular timeframe.

66. [42]    The issue of justiciability must also be assessed in the context of the other mechanisms adopted by the Act for ensuring Kyoto compliance. In this case, the Act creates rather elaborate reporting and review mechanisms within the Parliamentary sphere. On this point I agree with the counsel for the respondents that, with respect to matters of substantive compliance with Kyoto, the Act clearly contemplates Parliamentary and public accountability. While such a scheme will not always displace an enforcement role for the Court, in the overall context of this case, I think it does. If Parliament had intended to impose a justiciable duty upon the government to comply with Canada’s Kyoto commitments, it could easily have said so in clear and simple language.[2]
…[44]    Considering the scope of the review mechanisms established by the Act alongside of the statutory construction issues noted above, the statutory scheme must be interpreted as excluding judicial review over issues of substantive Kyoto compliance including the regulatory function. Parliament has, with the KPIA, created a comprehensive system of public and Parliamentary accountability as a substitute for judicial review.

67. [46]    I have concluded that the Court has no role to play reviewing the reasonableness of the government’s response to Canada’s Kyoto commitments within the four corners of the KPIA. While there may be a limited role for the Court in the enforcement of the clearly mandatory elements of the Act such as those requiring the preparation and publication of Climate Change Plans, statements and reports, those are not matters which are at issue in these applications.
[47]    Even if I am wrong about the issue of justiciability, I would, as a matter of discretion, still decline to make a mandatory order against the respondents. Such an order would be so devoid of meaningful content and the nature of any response to it so legally intangible that the exercise would be meaningless in practical terms.

68. Massachusetts v EPA, 127 S. Ct. 1438 (2 april 2007)
Legislation:
Clean Air Act:
The [EPA] Administrator SHALL by regulation prescribe… standards applicable to the emission of any air pollutant from any class or classes or new motor vehicles or…engines, which IN HIS JUDGMENT cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare

69. What would you argue?
If you were the plaintiffs?
If you were the EPA?

70. “If EPAS makes a finding of endangerment, the Clean Air Act REQUIRES the agency to regulate emissions of the deleterious pollutant from new motor vehicles…
“EPA has refused to comply with this clear statutory command. Instead, it has offered a laundry list of reasons not to regulate. …
Although we have neither the expertise nor the authority to evaluate these policy judgments, it is evident they have nothing to do with whether greenhouse gas emissions contribute to climate change. Still less to they amount to a reasoned justification for declining to form a scientific judgement. …

71. EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change. Its action was therefore “arbitrary, capricious .. Or otherwise not in accordance with law.”