One of the organizations involved in this arrangement is the Montana-based Foundation for Research on the Environment and Economics (FREE), a pro-business/anti-regulation outlet that has received heavy funding from corporate interests such as Exxon-Mobil and ideological forces such as the foundations run by the Scaife and Coors families. Two years ago, in response to an ethics petition filed by CRC, the federal judiciary’s Committee on Codes of Conduct authored a non-public ethics opinion deeming it inappropriate for federal judges to sit on FREE’s board. Unfortunately, in the interim, two federal judges– Danny Boggs of the 6th Circuit and Edith Brown Clement of the 5th Circuit– have continued to ignore this opinion, free from public scrutiny due to the Judiciary’s keeping this matter cooped up.

That should end today. CRC has written the judiciary seeking public release of this opinon, which likely played a role in three other judges’ (very reluctant) decision to resign from FREE’s board [UPDATE: we've received a rather pointed and quick response from Judge Gordon Quist, declining our request]. The timing of this matter is critical– as documented here in the Daily Journal, legislation aiming to end this practice stands a decent chance at passing when the Senate Judiciary Committee takes up judicial pay raises tomorrow:

Although the judges find the seminars stimulating, they also enjoy the resort-style accommodations. When asked by ABC News whether a judicial seminar at the Omni Tucson Resort was a “junket,” one judge responded in Clintonian terms: “It depends on what you mean by ‘junket.’” Another judge candidly described the conference as his well-deserved “vacation.” As one seminar host put it, these plush resorts are “a very useful place to have a conversation.”

The U.S. Congress is now poised to end this cozy arrangement. As it considers legislation to boost judicial salaries, a move long overdue, the Senate Judiciary Committee is examining a bipartisan proposal…that would prohibit judges from accepting travel gifts from these private groups, with reasonable exceptions for bar associations and the like. Just as Congress relinquished certain perks when it approved previous pay raises for itself, [Senator Feingold proposes] that judges do the same.

Make no mistake: while FREE’s junkets do contain a lot of educational discussion, in some, the perspectives of speakers and the overall agenda skew markedly toward the libertarian, anti-climate-change-regulation standpoint of FREE’s funders. One judicial seminar detailed in Tainted Justice, a 5-day retreat hosted by FREE, bore the seemingly innocous title of “Understanding the Ecology, Economics and Effects of Climate Change.” Its apparent focus, however, was on fomenting opposition to climate-related regulations. FREE admitted this much, as per a 2006 Washington Post op-ed by noted EPA whistleblower Eric Schaeffer:

Ginsburg, Sentelle and 10 other federal judges at this particular conference were warned about deep scientific uncertainties, according to FREE’s John Downen, who, in writing about the seminar, suggested that people adapt to higher temperatures through economic growth, rather than by cutting emissions.

The two judges Schaeffer singles out by name, DC Circuit Court of Appeals Chief Judge Douglas Ginsburg (who resigned from FREE’s board in response to the ethics complaint filed by CRC) and Circuit Judge David B. Sentelle, have become pivotal figures in the legal debate over climate change. As Schaeffer noted, Ginsburg and Sentelle constituted the 2-1 majority on the DC Circuit that initially ruled in the Bush administration’s favor in Massachusetts v. EPA, a decision that was later overturned by the U.S. Supreme Court.

With the courts increasingly becoming an active venue in the struggle to cope with global warming, that’s not a loophole that we can afford to keep open. The federal judiciary should make full public disclosure about this matter, and Congress should follow suit by passing Senator Feingold’s proposal– which would end this ethically-tainted practice for good, and send a message throughout the legal and political world that unbiased assessments of science and the rule of law, not ideologically-skewed perspectives, should be used to adjudicate climate litigation.

The issue on which Pelosi convinced Rep. John Dingell (D-Mich.) and other auto industry allies to back down, known in legal circles as “preemption,” has emerged as a lightning rod in global warming politics. The focus on preemption has only intensified in the wake of the Supreme Court’s ruling this April in Mass v. EPA, recent developments in the states, and the current confused state of Supreme Court preemption law.

Things could get better or worse depending how the Court disposes of a case that was argued on Tuesday. On its face, Riegel v. Medtronic, about liability for faulty medical devices, doesn’t have anything to do with global warming. It could, however, be a turning point in preemption doctrine, and thus have a significant long-range impact on the global warming/federalism/politics mix.

The Legal and Political Landscape

My boss, Doug Kendall, noted the dynamic at stake back in May, in a Knight Ridder op-ed assessing the potential impact of Mass v. EPA:

It is a dirty little secret that industry dislikes federal environmental regulation more than anything — except a patchwork of regulation at the state and local level. We learned this several decades ago, when industry fought the federal Clean Air Act tooth and nail until it became clear that, absent federal legislation, states were going to take matters into their own hands.

The lesson of these early fights is that industry is more motivated by fear than science. Like the impacts of air pollution in the 1960s, the science of global warming has long been sufficiently clear to warrant a federal response. What has been lacking is a credible threat that industry would be worse off without one.

That changed when the Supreme Court ruled in favor of Massachusetts. Previously, industry had reason to think that it would succeed in frustrating meaningful action at the state and local level through litigation. In the aftermath of the landmark decision, and in light of ever-rising public pressure to get serious about global warming and move toward a clean-energy economy, a rising tide of state actions and legal setbacks have left defenders of the status quo reeling.

States are often described as the laboratories of American democracy, and Mass. v. EPA has fostered a surge in new state global warming initiatives and bolstered existing ones. To give one of the most prominent examples, Republican Governor Charlie Crist of Florida responded with executive orders adopting California’s auto emissions program and setting a goal of reducing the state’s greenhouse gas emissions by more than 80 percent by 2050. Just this week, Maryland Governor Martin O’Malley announced an even more ambitious plan, aiming for a 90 percent drop by 2050.

The Supreme Court’s decision has also been enormously helpful to states defending their greenhouse gas emissions laws against industry challenges. Federal Judge William K. Sessions’ 240-page ruling in Vermont, which eviscerated the argument that state efforts are preempted by existing federal law, heavily cited Mass v. EPA; a recent hearing in the industry’s preemption lawsuit against California indicated that the judge there has also been moved by the Court’s reasoning.

Thus we’re now at the stage where the industry is terrified at the rising tide of state action and court defeats, and seeking some kind of federal preemption has become its key issue. In the courts, this meant that the Vermont court ruling was swiftly appealed, with industry signaling its seriousness (and subtly admitting it needs some top-flight help) by hiring Kathleen Sullivan, a noted Supreme Court litigator and former dean of Stanford Law School.

We’ve also seen this dynamic play out in energy bill negotiations, where the biggest sticking point between Dingell and Pelosi was whether California standards would be preempted or not. In response to the deal they struck, industry surrogates accustomed to lying exaggeration now suggest that the upcoming energy bill should satisfy states’ thirst for action. The states are rightly pressing ahead, insisting on a regime that sets a clear national standard while giving them breathing room for the kind of future innovation that will continue to push things forward.

Riegel’s Significance

In helping states ramp up and defend their own responses, the Court’s ruling in the case it heard Tuesday has an opportunity to further alter the legislative debate at the federal level. Over the years, the Court has developed a bewildering array of doctrines that invalidate state laws and programs without any clear evidence that they are incompatible with state law. These are the rulings that gave industry so much comfort before Mass. v. EPA.

While Mass. v. EPA and certain more recent preemption cases have suggested that the Court’s approach might be changing for the better, a strong statement on preemption in the Riegel case could clarify the Court’s position, and resolve ambiguities in favor of the kind of bold state experimentation needed to rise to the challenge of climate change.

That’s why Community Rights Counsel, which focuses on environmental law, filed a friend-of-the-court brief in Riegel. CRC’s Chief Counsel, Tim Dowling, provided an overview of the case’s specifics and our argument back in August after the Court agreed to hear Mrs. Riegel’s appeal.

In Riegel, the medical device industry (represented by former Solicitor General Ted Olson, whose firm also represents the auto industry in its global warming lawsuits) joined with the Bush administration to argue that federal laws and regulations on product safety pre-empt consumer lawsuits filed against medical device manufacturers under state common law.

CRC’s brief argues that, to the contrary, binding precedent requires a standard for express preemption that strongly defers to state and local laws aimed at promoting public health, safeguarding the environment, and protecting our communities. During oral arguments, the lawyer for Mrs. Riegel, Allison Zieve of Public Citizen, convincingly argued that while the 1976 law being debated does preempt many state regulations, overruling lawsuits in state courts was not explicitly part of the law and was certainly not the intention of its authors (Senator Ted Kennedy, the lead author of the Medical Device Amendments, filed a brief siding with the Riegels).

As the esteemed Linda Greenhouse reports in the NY Times, the justices’ statements yesterday left no clear indicator of what might guide their decision. While several justices appeared wary of the implications of allowing lawsuits, there also seemed to be not-insignificant skepticism about leaving the issue entirely in federal hands. And the plaintiff’s express preemption argument was not significantly undermined.

The Court is expected to rule within the next several months.

What the Court Should Do

Recent events have strengthened the hand of those pressing for more serious action at all levels to combat global warming pollution, but on their own they don’t necessarily constitute a breakthrough. Industry is doing everything in its power, in court and in Congress, to rid itself of the threat of state action.

Climate activists will need state leadership for the foreseeable future, and need to be equally vigilant in resisting legislative preemption. The Supreme Court could help by using the Riegel case to apply a “clear statement” rule, requiring that Congress be clear and unambiguous if it intends to invalidate state or local laws through preemption. 

This standard would provide states and environmental groups compelling arguments against industry claims of preemption in global warming litigation, and pave the way for California’s clean cars program and future innovative efforts.  The Supreme Court has often talked about the importance of states of “laboratories” of democracy; it’s high time that it backed those words up with concrete action.