The discussion of Massachusetts v. EPA is well underway thanks to David's summary of the action. I'm going to provide some thoughts about each of the three issues involved in the case, as well as some of the possible implications. The outcome of Mass. v. EPA boils down to one thing: the Supreme Court has ordered EPA to think again. While that may not sound like much, in the world of administrative law, it is a total rout for the Bush administration. While the outcome is good news, this decision was as close as they come. I'm not surprised that the Court split 5 to 4 on the issue of standing. However, this divide extended to all three questions before the court.
You may have heard about efforts by the motor vehicle industry to invalidate state laws restricting greenhouse gas emissions from cars and trucks. California crafted a rule, other states adopted it, and the industry filed suit. It's a legal argument that stretches back to 2005. And with three active cases -- in California, Rhode Island, and Vermont -- it's not going away soon. In a dramatic new twist, the industry asked the court in the Vermont case to hold most of the trial in secret.
The Supreme Court heard argument in a curious case this week. No, I'm not talking about the celebrated "Bong Hits for Jesus" case. The second case on Monday's docket involved an Alabaman turned Wyoming rancher claiming that government bureaucrats had engaged in extortion by enforcing the letter of the law. An appellate court in Denver, Colo., ruled that Harvey Frank Robbins (the rancher) could sue Charles Wilkie and other Bureau of Land Management employees under the Racketeer Influenced and Corrupt Organizations Act (also known as RICO) -- a law used to prosecute mobsters involved in organized crime. Now the chance for the Supremes to weigh in, and maybe hint at what they're thinking ...
Environmental law appears to be a hot commodity in the Roberts Court. While the justices continue to deliberate about global warming, they agreed (PDF) on Friday to add another hot-button environmental issue to their agenda: the Endangered Species Act. Setting the Stage The case, Defenders of Wildlife v. EPA, also implicates the Clean Water Act (CWA). Under the CWA, a would-be polluter needs to get a permit before it discharges into our nation's waters. The CWA requires that the federal government delegate permitting authority to the states, if they meet a number of requirements. Today, almost every state issues its own permits. (EPA provides this map [PDF] illustrating which states have permitting authority.)
As the court-watchers (or even dabblers) amongst you are aware, the justices of the U.S. Supreme Court seemed preoccupied with the issue of standing during the recent oral argument in Massachusetts v. EPA. This debate has echoed in the blogosphere. Jonathan Adler argues, both on Volokh Conspiracy (it's a bit buried) and in an amicus brief (PDF), that global warming causes nonjusticiable, generalized injuries. Grist's own David Roberts questions whether a court order can provide Massachusetts with any relief. The Sierra Club's Executive Director, Carl Pope, believes that an adverse standing decision would have an enormous negative impact on environmental litigation. In this post, I'm going to try to break down the arguments a little.
David highlights a few of the difficult and interesting questions facing the Court in Massachusetts v. EPA, which as you all probably know was argued this morning. I wanted to provide a few thoughts about the argument, gleaned from my seat in the courtroom's last row, reading the transcript (PDF), and watching a fantastic panel at the Georgetown Law School discussing the argument. (You can see a webcast of the panel here.) The justices were very engaged this morning. A quick review of the transcript indicates that the court broke into the arguments of the Deputy Solicitor General Gregory Garre (for EPA) and Assistant Attorney General James Milkey (for Massachusetts) more than 50 times each. Below, I try to identify some highlights for each of the three major issues before the court. For ease, I'll refer to the advocates as the United States and Massachusetts.
Lawyers and Supreme Court commentators hardly seem the type to camp out for tickets. But that's precisely what a line of expectant court-watchers will be doing one week from today -- braving early morning Capitol Hill in hopes of gaining entrance to oral argument in Massachusetts v. EPA. Like a pre-game sportscast, today's post will attempt to give a flavor for points of contention -- in this case, the legal issues before the court. It won't be exhaustive. If you're looking for greater detail, refer to either the briefs or to this recent report (PDF). The case involves a suit by Massachusetts and its allies (a coalition of other states and nonprofit groups) -- I'll refer to them as the petitioners -- against the EPA for refusing to use the Clean Air Act to regulate greenhouse gases, including carbon dioxide emitted from motor vehicles. The petitioners lost (PDF) in the U.S. Court of Appeals for the D.C. Circuit, but convinced the U.S. Supreme Court to review the case. When the Supreme Court decides to hear a case, it grants certiorari on specific questions. In Massachusetts v. EPA, the Court agreed to consider two:
As I mentioned in a post last week, frustration with the political process has led many global warming advocates to turn to the courts. While I'm skeptical that the judiciary can solve the problem, it may be an important part of the solution. While the Massachusetts case has dominated public attention to global warming litigation, it is only one of more than a dozen active cases seeking courts intervention. As outlined in a recent report by the Georgetown Environmental Law & Policy Institute (PDF), these cases roughly break down into four categories: Clean Air Act litigation (like the Massachusetts case), National Environmental Policy Act cases, common law nuisance suits, and industry challenges to state greenhouse gas regulations. (For anyone interested, the report is both concise and accessible -- though that's just shameless advertising, since I wrote it.) Today I'd like to discuss the second category: cases under the National Environmental Policy Act. As you may know, everything in environmental law has an acronym, sometimes making environmental lawyers unintelligible to the uninitiated. This Act goes by the relatively simple handle NEPA.
It's the first Tuesday in November. Election Day. As in years past, today I am a patriot. I feel hopeful that democracy will bring out the best in this nation's citizens and that tomorrow (or late tonight, huddled in front of my low-quality TV) I will witness political change and renew my belief that our politicians will pave (or plant) the way to a better future. When I think about tomorrow's leaders, I hope (almost desperately) they will have the courage to tackle global warming. The courts are unlikely to be an adequate substitute. For the past six years, our federal government has refused to do much of anything. The most daring step taken may have occurred in 2005, when the Senate passed an amendment to the Energy Policy Act expressing its "sense" that Congress should do something. This "sense" did not remain in the law's final version, and we have yet to see it translated into action. In light of this systematic, breathtaking political failure, environmentalists have brought global warming into courtrooms across the country. This is new territory for the judiciary. To date, the U.S. Supreme Court has never so much as mentioned global warming or greenhouse gases in any of its decisions. However, the Justices are about to get their chance. On November 29th, as the dust settles from today's election, the Justices will hear Massachusetts v. EPA, which has pitted state against state (eleven states join Massachusetts, nine join EPA) and split the business community in two.
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