litigation

Forest Service official threatened with jail time over fish-killing fire retardant

Mark Rey, the undersecretary of agriculture in charge of the U.S. Forest Service, has been threatened with jail time or house arrest for his agency’s attempts to continue using a flame retardant on forest fires that’s toxic to fish. In 2002, fire retardant was dropped on a blaze in central Oregon, killing about 20,000 fish. […]

Bush admin backs off appeal of nixed forest-management rules, to release new ones

The Bush administration has backed off of an appeal of a March 2007 ruling that overturned controversial management rules for national forests. The struck-down rules allowed national forest managers to approve logging, mining, cell-phone towers, and other commercial projects without undergoing environmental reviews and were found to violate the Endangered Species Act. The Bush administration […]

Medical device case could impact global warming debate

In last week's negotiations over the energy bill, one of the most significant victories for proponents of getting serious about global warming came when Speaker Nancy Pelosi stood up to yet another attempt to short-circuit efforts by over a dozen states to demand cleaner cars.

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:

EPA gives permit to new Utah coal plant; Waxman cries foul

Given the opportunity last month to adhere to the Supreme Court's findings in the case of Massachusetts vs. EPA, the EPA chose instead to completely ignore the ruling and proceed as if the case had never been heard. It issued a permit to Deseret Power to construct a 110-megawatt coal-fired power unit at an existing power plant in Uintah County, Utah.

Rep. Henry Waxman (D-Calif.), chair of the House Committee on Oversight and Government Reform, today sent a letter to EPA Administrator Stephen Johnson urging him to reverse his decision and asking him to answer some important questions. The letter is available at this link. Here are highlights:

On August 30, 2007 , EPA issued a permit to Deseret Power for the construction of a 110-megawatt coal-fired power unit at the Bonanza Power Plant in Uintah County, Utah. The Deseret Bonaiua permit decision presented EPA with its first opportunity since the Supreme Court ruling to address the global warming harm from a major new stationary source of greenhouse gases. While relatively small, this unit has the potential to emit up to 90 million tons of CO2 over an estimated 50-year lifetime. As the permitting authority for this plant, EPA had to decide whether to issue the permit and whether to require carbon dioxide pollution controls or other mitigating measures under the permit ...

... EPA ruled in the permit decision that CO2 is not "subject to regulation" under the [Clean Air] Act and thus that EPA cannot require the plant to apply the best available control technology to reduce greenhouse gases. According to EPA, CO2 cannot be considered "subject to regulation" because CO2 is not yet regulated by "a statutory or regulatory provision that requires actual control of emissions." In essence, the EPA argument is that because EPA has not regulated CO2 emissions in the past, the agency cannot regulate CO2 emissions now.

This is a bootstrap argument that conflicts with the plain language of the statute and blatantly misconstrues the Supreme Court's recent holding. ...

... I request your cooperation in the Committee's investigation into the process that led to the Deseret Power decision. First, I ask that you provide the Committee on Oversight and Government Reform copies of all documents relating to communications between EPA and any other federal agency or the White House that relate to (1) the Deseret Power application or (2) the consideration of greenhouse gas emissions when making permitting decisions for new coal or gas-fired power plants.

The tentative deadline for that information and the answers to other questions in the letter is October 3.

Heathrow owners win climate-camp injunction

Last week in Daily Grist, we reported that BAA, the company that owns Heathrow Airport, had requested an injunction against protesters planning a weeklong Camp for Climate Action in mid-August. The original request was so badly worded that it sounded like 5 million people would be kept away from the airport, but a judge granted […]

Learn to look down the ballot — waaaaaay down

Here's a story that's all too common:

Right-wing dominated court; likes to pat itself on the back for being a "strict constructionalist" court that, regardless of its own justices' preferences, follows the commands of the legislature expressed in the plain words of the statutes. No "judge-made law" here, just the power of the people expressed through their elected representatives.

Except not.

Michigan's Environmental Policy Act gave "any person" the right to sue over environmental damages, allowing people to act as citizen attorneys-general because, as the pols in the 1970s recognized, elected AGs and appointed state bureaucrats often aren't actually all that interested in confronting contribution-wielding polluters.

So, this year, the Michigan Supreme Court GOP majority took off its strict constructionalist hat and donned its liberal interpretation hat to decide that, well, "any person" doesn't mean what you might think it means.

Brit greenhouse-gas factories, now with extra fascism

Nice.

Self-proclaimed conservatives often simply just like different outcomes

Michigan has an important case up before a state Supreme Court known for two things: Making radical revisions to laws the Republican majority dislikes, and proclaiming its strict textualism in interpreting the law.

In the case before the Supreme Court, attorneys for Nestle Waters North America have argued in opposition to citizens' rights under [the Michigan Environmental Protection Act], saying that citizens must be "directly affected" by an environmental action to go to court over it. That means only people who can show pollution, impairment or destruction of natural resources on their own property could take action under MEPA. Nestle, which wants to continue pumping water from a large Michigan wetland for bottling and sale, mostly outside the state, is being challenged under MEPA by a group called Michigan Citizens for Water Conservation.

California takes the lead

California is once again taking the lead: California Attorney General Jerry Brown has sued San Bernardino County, the largest in area in the contiguous USA and one of the fastest growing, for failing to account for greenhouse gases when updating its 25-year blueprint for growth. “It’s groundbreaking. California is just leading the way for other […]