Yesterday, the Solicitor General’s office filed a brief asking the Supreme Court to vacate a victory against several polluters, including a federally-owned corporation:

The Department of Justice brief, filed with the Supreme Court this week, says the Environmental Protection Agency is already on the job, and doesn’t need help from private plaintiffs.

“EPA has already begun taking actions to address carbon-dioxide emissions,” a brief filed by Acting Solicitor General Neal Katyal says. “That regulatory approach is preferable to what would result if multiple district courts — acting without the benefit of even the most basic statutory guidance — could use common-law nuisance claims to sit as arbiters of scientific and technology-related disputes and de facto regulators of power plants and other sources of pollution.”

The administration’s brief was filed in connection with litigation pitting the state of Connecticut and seven other states as well as New York City against a group of large coal-burning utilities. The suit contends the utilities are creating a “public nuisance’” through their greenhouse-gas emissions and seeks to force them to cut their emissions. The utilities, including American Electric Power Corp., countered that the issue was a political, not a judicial, matter and that the states didn’t have a right to sue, among other arguments.

Unsurprisingly, environmentalists are outraged by DOJ’s brief, and their outrage in many ways harkens back to the controversy over a previous brief defending the egregious Defense of Marriage Act.

Generally speaking, DOJ has a duty to defend lawsuits filed against the federal government, and several environmental attorneys that I spoke with agreed that DOJ should not be faulted for filing a brief defending against a lawsuit where a federal entity is a defendant.  As was the case with DOMA, however, DOJ should not be required to make dangerous or offensive arguments, and DOJ’s brief in the environmental litigation advances an argument that could seriously undermine environmental protection the next time a conservative president is elected.

Ever since a 1907 Supreme Court decision required Tennessee copper companies to reduce emissions that were damaging Georgia farmers’ crops, states have been empowered to sue harmful emitters under a legal theory known as “nuisance.”  So the case against greenhouse gas emitters should be a slam dunk, since unchecked greenhouse emissions will cause devastating harm throughout the world.

DOJ, however, makes two claims why nuisance law should not apply here.  Their less troubling argument is that, because EPA has started to regulate greenhouse emissions after President Obama took office, these EPA regulations “displace” federal nuisance law.  Under this line of reasoning, if a future administration were to lift Obama-era regulations protecting against climate change, federal nuisance law would remain as a backstop to prevent emitters from being completely unchecked.

DOJ’s second argument creates a much bigger problem.  Under this argument, the states lack “standing” to assert a federal nuisance claim altogether.  Should this reasoning be adopted by the courts, federal nuisance law would no longer provide a backstop against emissions, and it would no longer serve as a deterrent to prevent conservatives from gutting environmental regulations.

One additional wrinkle presented by this case is the possibility it could be heard by a panel of justices who have largely pushed a knee-jerk pro-corporate agenda.  Justice Sotomayor heard oral arguments in this case while she sat on the Second Circuit, although she was promoted to the Supreme Court before the final decision came down, so she is likely to recuse from further involvement in the case.  Additionally, if Justice Kagan had any involvement with the case while she was Solicitor General she would recuse as well.  In other words, the future of environmental law could rest in the hands of the Court’s four most conservative members: Roberts, Scalia, Thomas and Alito.

Perhaps this is why DOJ offered the standing argument to the Court–as a way to prevent an ideological four-justice majority from doing something even more damaging while they have a chance.  Even so, this standing argument has troubling implications for the future if it is ever adopted by the courts.

Monbiot: “A scrupulously honest man has been much maligned”

“No evidence was found that indicated personal fiduciary benefits accruing to Pachauri from his various advisory roles that would have led to a conflict of interest.“

That’s the finding of a detailed report by KPMG on the finances of Rajendra Pachauri, chairman of the Intergovernmental Panel on Climate Change.

A great many U.S. reporters and bloggers owe an apology to Pachauri (see “N.Y. Times and Elisabeth Rosenthal Face Credibility Siege over Unbalanced Climate Coverage“).

Let’s see if they own up to it as the UK’s Telegraph finally did:

On 20 December 2009 we published an article about Dr Pachauri and his business interests. It was not intended to suggest that Dr Pachauri was corrupt or abusing his position as head of the IPCC and we accept KPMG found Dr Pachauri had not made “millions of dollars” in recent years. We apologise to Dr Pachauri for any embarrassment caused.

In fact, suggesting Pachauri was corrupt or abusing his position was the whole point of the story, which has been removed from their website but which you can easily find on right-wing websites by googling the title:  “Questions over business deals of UN climate change guru Dr Rajendra Pachauri” by Christopher Booker and Richard North.

This whole smear against Pachauri was so outrageous, but so eagerly parroted by U.S. disinformers and so willingly lapped up by the U.S. media that I’m going to reprint below in its entirety, George Monbiot’s piece for the UK Guardian.  I hope others will echo this far and wide:

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Another day, another in a long line of mesmerizingly message-muddying moves by the Obama administration on the environment.

As with the decision to embrace offshore drilling, we’ll no doubt eventually learn that this decision — which lies somewhere on the scale between between unproductive and counter-productive — was made without serious input from those in the administration who represent science or the environment.

I had applauded the original decision (see Federal court says states may sue utilities over GHGs. NY AG Cuomo: “This is a game-changing decision for New York and other states, reaffirming our right to take direct action against global warming pollution from power plants”).

I couldn’t find anyone who thinks this moves makes much sense.  NRDC’s David Donger told the WSJ, “We are appalled.”

But I could find someone who can explain what team Obama did and why it doesn’t make much sense — CAP’s Ian Millhiser, who received a J.D., magna cum laude, from Duke University.   He clerked for Judge Eric L. Clay of the U.S. Court of Appeals for the Sixth Circuit.  What follows is a Wonk Room cross-post.

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California Approves First New U.S. Thermal Solar Plant

California regulators on Wednesday approved a license for the nation’s first large-scale solar thermal power plant in two decades.

The licensing of the 250-megawatt Beacon Solar Energy Project after a two-and-a-half-year environmental review comes as several other big solar farms are set to receive approval from the California Energ y Commission in the next month.

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Two of President Obama’s top environmental advisers told a panel investigating the cause of the BP oil spill Wednesday that they did not provide the environmental and scientific basis for the administration’s new five-year plan expanding oil and gas drilling off the nation’s coasts.

I was not a fan of Obama’s decision to allow drilling and/or exploration off much of the U.S. coast on energy, environmental or political grounds (see EIA: New offshore drilling will lower gas prices in 2030 a few pennies a gallon, Bush official Dan Bartlett admits authorizing offshore oil drilling will be unlikely to win over any GOP votes: “Republicans have made a calculation that cooperating with this administration at this time is not necessary for them to pick up seats”).

Ultimately, the decision proved catastrophic from a positioning and messaging perspective — making it one of White House’s biggest blunders to date.  It put Obama on the side of drilling right before the biggest oil disaster in U.S. history.

Now it’s clear that this poor decision looked amateurish because it was.  The administration simply didn’t do his homework.  The decision was made without full scientific and environmental input — by design.  The Washington Independent explains:

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Top climatologist launches new website with graphs and analysis

60-month and 132-month running means of global surface temperature anomaly with a base period 1951-1980.

The nation’s leading — and most scientifically prescient — climatologist has a new website, Updating the Climate Science: What Path is the Real World Following? It “will present updated graphs and discussion of key quantities that help provide understanding of how climate change is developing and how effective or ineffective global actions are in affecting climate forcings and future climate change.”

He also has a new essay, “Activist”, for “J. Henry Fair’s upcoming book.”  As an aside I simply can’t imagine why Fair titled his book, “The Day After Tomorrow,” the dreadful, scientifically inaccurate 2004 climate movie that many folks, like director James Cameron, actually say set back the cause of informing the public about climate science and the dangers of unrestricted greenhouse gas emissions.

I’ll excerpt the essay and repost some of the graphs below:

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Conservatives who oppose clean energy and real climate action typically tout uber-expensive  nuclear power as the solution (see Lamar Alexander calls nuclear “the cheap clean energy solution,” renews GOP call for 100 new nukes, which would cost some $1 trillion).  CAP’s Richard W. Caperton explains in this Wonk Room cross post how failure to pursue genuine action on climate change –  a shrinking cap and rising price on carbon –  actually harms the industry (see also “2009 summer heatwave puts a third of French nukes out of action“).

Nuclear reactor developers have a compelling reason to support a cap on carbon pollution: the effects of climate change could make it to impossible to run nuclear reactors. For example, the Tennessee Valley Authority (TVA) has drastically reduced power generation at the Browns Ferry nuclear plant this summer:

The Tennessee Valley Authority has lost nearly $50 million in power generation from its biggest nuclear plant because the Tennessee River in Alabama is too hot….

“All the radiant heat gets in the river when you have a summer as hot as this has been,” TVA President Tom Kilgore said.

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$129 million Interagency Energy Efficiency Cluster Initiative to be located in Philadelphia

Tuesday was a landmark in our nation’s technology innovation policy, as CAP’s Sean Pool explains.  The Department of Energy announced that a consortium of more than 90 public- and private-sector organizations based in the Philadelphia region will host the first Energy Regional Innovation Cluster or, E-RIC, a new interagency program to accelerate energy innovation and commercialization. The new E-RIC was selected among many applicants to win $129 million dollars in grants and programmatic support from the DOE and six other federal agencies for investment in energy efficiency technology innovation and commercialization.

The award itself is important because buildings directly or indirectly account for approximately 40 percent of national global warming pollution; technology innovation in this sector has the potential to make a big impact on climate change. CAP has documented extensively how energy efficiency is among the best ways to create jobs, reduce our dependence on foreign fuels, and save money.

But the concept behind the award is equally important from a policymaking perspective. Watching this first-of-a-kind public-private interagency collaboration unfold will shed light on the very process of bottom-up, American innovation itself.

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