litigation

More on Supreme Court decision

In November, the issue of EPA's refusal to regulate greenhouse gas emissions went before the Supreme Court. Yesterday, the decision (PDF) was announced -- 5-4 in favor of Massachusetts, meaning that the EPA does have the authority and responsibility to regulate carbon dioxide as a pollutant. In short, the time to act is now!

In the chutzpah department, EPA actually tried to argue that 1) "any EPA regulation of motor-vehicle emission" was a "piecemeal approach to climate change that would conflict with the President's comprehensive [!] approach" -- comprehensive, I suppose, in the sense that he refuses to take any substantive action in every sector, and 2) such regulation "might hamper the President's ability to persuade key developing nations to reduce emissions" -- a particularly amazing argument, since the president has been working hard behind the scenes to persuade key developing nations not to reduce emissions. Justice Stevens, writing for the majority, made short work of those absurd arguments.

So much BS in so few words!

Here’s a bit on the Supreme Court case from a White House briefing today. Marvel, if you will, at the sheer amount of dishonesty and misdirection packed into these few short paragraphs. Virtually every sentence, every word, needs unpacking. It’s always been a talent of this White House to use a kind of shock-and-awe bullshitting […]

Breaking: Supreme Court rules against Bush admin. in global warming case

Word just came down that the Supreme Court has ruled against the Bush administration in the landmark global warming case of Massachusetts v. EPA. The ruling was 5-4, with conservatives dissenting and the crucial vote of Anthony Kennedy going with the … non-conservatives. Background on the case here, here, here, and here. The court addressed […]

Judge refuses request for a closed courtroom in global warming case

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 considers an extortion suit against federal land managers

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 ...

Justices agree to hear Defenders of Wildlife case

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.)

Do federal courts have jurisdiction in Massachusetts v. EPA?

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.

The drum beat is bringing the public around

When discussing the recent Supreme Court case, those opposed to action on climate change often use the argument that the court should rule against Mass. et al. because these kinds of legal challenges are end runs around the legislative process. Rather, they argue, it is the president and Congress that should be taking up this issue.

Duh.

Why I’m disappointed with yesterday’s Supreme Court hearings

I was quite disappointed to see "uncertainty" front-and-center in the arguments yesterday by the EPA lawyer before the Supreme Court:

... now is not the time to exercise such authority, in light of the substantial scientific uncertainty surrounding global climate change and the ongoing studies designed to address those uncertainties.

I thought I'd detected a shift by those opposed to action away from this argument and toward economic and fairness arguments. I guess when your back's against the wall, you go with what you know.

The argument that there is too much uncertainty to act is a value decision, not a scientific one. Consider this example: the odds of dying in a skydiving accident are about 100,000 to one. You and I can agree on this statistic, but disagree on its implications. I can say, "that's too risky," while you might disagree and argue, "I'm jumping -- you can't live your life avoiding risk."