Indeck Lawsuit, Continued

Indeck's complaint alleges several causes of actions, including that the Governor authorized executive branch agencies to create the system by which New York would administer the RGGI CO2 credits without proper legislative consent.
Two more interesting claims are: (1) that the Governor has, in fact, created a tax, which under established law would require legislative consent; and (2) that the CO2 credits are not personal or real property, but licenses. The agencies responsible, according to the complaint, only have jurisdiction over personal or real property.
The pollution-as-property idea, which is somewhat inherent in all cap-and-trade programs, has troubled environmentalists for some time. The extreme example I remember one troubled individual gave (though I can't remember who) involved a rich person and the Grand Canyon. If you could pay to pollute, then at some point a price would exist which would permit a rich person to fill up the Grand Canyon with his empty soda cans. In other words, the problem is philosophical and economic: Is there always an optimal price to pollute? And if so, does that not discount the non-economic values we place on unpolluted, natural places?
Two last points: Public-good economics have developed rapidly, to the point we can now better calculate the external costs of pollution, thus allowing us to monetarily value clean air. Secondly, Indeck claims "the right to emit" is a license, not a property right. I wonder if Indeck truly believes that, or if it's a litigation strategy. Regardless, it will be interesting what the court finds.