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.
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.
– Ian Millhiser
Previous in TP Climate Progress
As time progresses- stories like this post frustrate me further about Obama. The man just fails to see that finding middle ground (if that’s what you want to call it, means no new solutions for energy and CC.
Does Obama have principals on anything? He has proved to be a very disappointing President for someone who promised change and hope.
It seems more like business as usual- and to hell with the progressive base. At this point H. Clinton would have been a far more effective mouth piece against the far right.
Appalling. We can only hope it doesn’t succeed. How could they be so clueless? On top of everything elste it is deeply unethical. How many trillions do we have to see spent on uneven mitigation before we try to address the roots of the problems with the way we take our Genesis genocidal right to endlessly feed ourselves with comforts by trashing our home?
One very big reason why lawyers have such a bad reputation is that their entire professional ethos is built around the idea of winning; truth is only of value if it helps them win. Otherwise, it is nothing but a damned nuisance to be noisily trampled in the race to victory.
Obviously there are individual lawyers for whom this is not true.
Just as there are still record cold days.
But the occasional outlier does not refute the general fact.
These people — whoever these people are, in the administration and etc. — seem to think that confusing “nuanced” legal techno-stuff is the way to go, will carry the day, and will help address the problem, keeping the public on board.
But the public is SO confused and frustrated right now, it’s amazing. If one needs to be a PhD legal scholar, from Harvard or Princeton, or have a full-time focus on these matters as well as membership in MENSA, in order to understand what’s going on (and even then with difficulty!), then where do we think that leaves the public, who actually elect people? No wonder many people would rather listen to Rush Limbaugh spout nonsense — at least it’s simple nonsense! — and would rather watch Glenn Beck sob — at least people can relate to simple sobbing! — than follow (and have confidence in) this complex techno-legal confusing mess that the administration is cooking up.
My head is spinning. People can’t muster the will to vote — or even make it to their polling places — when their heads are spinning.
At this point, although I understand that such simplistic measures are not as optimal as one would like, I would think seriously about voting for a candidate who Promises — Promises! — to simply pull the plug on all coal-burning power plants as of three years from the date she takes office! Period. Simplicity is beauty, especially when constructed complexity is gonna mess up the climate.
Sigh,
Jeff
Well, it’s a legitimate legal position … I’m not sure it’s a winner. And it certainly has me scratching my head politically. The environmental groups are going to be ticked. Connecticut v AEP was one of the bigger victories for environmental groups.
I could understand the administration’s position if EPA had actually enacted and implemented regulations to control carbon emissions. Since it hasn’t, I don’t know it could argue that federal action occupies the area. The actions that it has taken — new CAFE standards, the endangerment finding, and the tailoring rule — don’t seem like they preoccupy the field.
In many respects, it’s hard to distinguish the administration’s position here with that of the Bush EPA in Mass v EPA. Both argued that it is a matter exclusively committed to the federal government under the CAA. This administration’s position is stronger because of that Mass v EPA decision (specifying/clarifying the EPA’s authority) and the endangerment finding by EPA (showing the feds are taking action to implement their CAA authority). Also, Mass v EPA was about compelling the fed govt to act, not acting in lieu of federal action.
On the other hand, this case isn’t about trying to take authority from the federal government either (unlike, say, suing to prevent the Arizona immigration law from takinbg effect). No state is trying to legislate in the CAA realm. I guess the states are trying to compel power company action to reduce emissions, as well as recoup the expenses caused by power company activities … but that looks alot like the tobacco litigation which was allowed to proceed despite FDA authority to regulate. In that sense, I think ultimately the administration’s position is weak. I need to go back and read that Brown & Williamson decision which allowed the tobacco litigation to go forward.
My initial thoughts anyway. But I’ve only read the brief once, and I look foreard to Respondents’ Briefs.
It’s deeply disturbing that the four Supremes who would let all their Frat members on the Ark and then pull up the gangplank – that is after they booted the Noah family and all but the tasty animals off. That will occur the minute they realize that the flood isn’t just a myth spread by pointy headed prophets and namby pamby weaklings. (their thoughts, not mine)
It’s doubly disturbing that they believe they’re the good guys and those of us who fear the end of civilization, at a minimum, and the potential extinction of humanity – on our present course, are mistaken, at best.
What catastrophe will it take to wake up Obama’s underlings. Fire ‘em now!
i think they’re wrong about their reason 1, that fed nuisance laws will still be available as a backstop–i’m pretty sure that won’t actually happen like that. and i think they’re also wrong about reason 2, cuz the states do have standing. so i dunno, it could be just like with DOMA, that the DOJ needs to put up some sort of defence for its client, the government, whenever they’re being sued…but it’s always a scary thing.
Study: Upper layer of atmosphere shrinking
According to the study, published in the American Geophysical Union’s journal Geophysical Research Letters, the sun’s energy output was unusually low from 2007 to 2009.
http://www.newsvine.com/_news/2010/08/26/4976773-study-upper-layer-of-atmosphere-shrinking
Pakistan floods: ‘The worst is yet to come’
There are before and after pictures of the Swat Valley, taken just before the floods there . Notice the snow pack in the background , like the flash flood at 11,500 ft in India around the same time . Part of these floods being so bad was the fact that it rained hard at some extremely high altitudes, there by melting snow as the rain fell, and adding to the volume coming down the mountain.
http://www.bbc.co.uk/news/world-us-canada-11094840
Prices of basic foodstuffs like buckwheat and flour have soared in Russia over the past month as the effects of its worst ever drought hit supplies, statistics showed Wednesday.
http://www.seeddaily.com/reports/Food_prices_soar_in_Russia_after_drought_999.html
The Russian losses are more like 33% rather than the 20-25% being used just a few weeks ago.
Obama administration sides with utilities in Supreme Court case about climate change http://www.washingtonpost.com/wp-dyn/content/article/2010/08/26/AR2010082606632.html
Colorado Bob, #8 Kind of OT ;)
Maybe some aliens decided to help us, lol. Anyway the article is poorly written, lacks an proper explanation why the upper layer shrinks and how much.
Related
Earth atmosphere collapse puzzles scientists http://www.msnbc.msn.com/id/38270609/
Emmert suggests carbon dioxide (CO2) in the thermosphere might play a role in explaining the atmospheric collapse.
This gas acts as a coolant, shedding heat via infrared radiation. It is widely-known that CO2 levels have been increasing in Earth’s atmosphere. Extra CO2 in the thermosphere could have magnified the cooling action of solar minimum.
“But the numbers don’t quite add up,” Emmert said. “Even when we take CO2 into account using our best understanding of how it operates as a coolant, we cannot fully explain the thermosphere’s collapse.”
Emmert suggests carbon dioxide (CO2) in the thermosphere might play a role in explaining the atmospheric collapse.
So the EPA and DOJ are on the job? Well that’s a huge relief. And in 3 years if another president sits in the oval office, they’ll be doing something entirely different. So stupid. It reminds me of Schwartzenegger refusing to sign environmental laws passed by his assembly, and then putting the same programs in place by way of executive order.
Johann Hari: How much proof do the global warming deniers need?
Everything the climate scientists said would happen – with their pesky graphs and studies and computers – is coming to pass. This is proving the hottest year ever
http://www.independent.co.uk/opinion/commentators/johann-hari/johann-hari-how-much-proof-do-the-global-warming-deniers-need-2063077.html
Johann takes the bark off in this one.
(1) Maybe we’re not giving the administration enough credit here. Maybe there is a tactical calculation at work here. Given the presumed make-up of the Court deciding this matter, maybe the administration knows there is no way it could win. So …
They’re advancing a position (no state standing to pursue a nuisance claim (while trying to keep Mass v EPA state statutory citizen suit standing)) that would allow the Court to rule in favor of AEP without completely eliminating the backstop of federal nuisance litigation or substantively undermine the concerns of the states (that the power companies should reduce their admissions).
I keep trying to figure out how this fits with the regs they intend to roll out in January. My first reaction was that they are going to lose the political cover of nuisance lawsuits … they could have argued that the regs were needed to avoid the piecemeal approach of different states and citizens suing. But, upon deeper reflection, maybe they’re trying to set things up for just such an argument. The regs will presumably have been issued by the time the decision comes down. If they are, the Court is likely to hang its hat on the fact of the regs in saying that the states can’t also be compelling AEP action … thus, with a predicted conservative-inspired victory for AEP, Obama can still say, ‘see, but for those regs, there’d be all this piecemeal litigation.’
Alternatively, if Congress strips EPA of its authority to regulate CO2 before the decision comes down (an unfortunately possible development), there’s no way the Court could say that the federal govt occupies the area. Which would give Obama see-I-told-you-so cover of the ramifications of such Congressional action. It seems like the Court could still hang its hat on standing in this situation. Maybe, though, it’d be tough for the Court to say that we should defer to the political process as a matter of prudential standing when the political process has determined not to do anything. It’s the last sentence that I am least sure of in this analysis.
Just thinking out loud.
(2) Another alternative, suggested by a colleague of mine, is that A quick reading of the petition indicates that the feds are seeking to distinguish Massachusetts v. EPA, where the type of action at issue was supposedly similar to other federal statutory causes of action, from this case, where there is no such similarity. A fine distinction, perhaps, but plausible, and one that would preserve the expanded state-based environmental standing established Massachusetts.
Moreover, the feds point out that the facts in this case have changed significantly over the past year or so, since EPA is moving forward on CO2 emissions.
Finally, they have a point that any regulation of greenhouse gases should be uniform and based upon the EPA’s evaluation of the best current science, rather than the patchwork of judicial orders that would result from various, perhaps numerous, nuisance cases.
Thus, on balance, maybe this is not a reason to doubt the Obama Administration’s environmental bona fides, at least not based upon this petition. The message at this point seems to be: we’re not the Bush Administration; we’re working on it; give us some time to get it right.
Well, if industries are are given the ok to
say to the individual states that they didn’t
promise the states not to destroy the state’s
likelihood, and the Federal government is only
allowed to take a belief in the industries
ability to do what the industry would like to
do, the people may only be left with the industry
leader’s dismay when the leaders go on vacation from
the corporation and see that there are starving and
polluted people out there in the leaders’ back
yards.
Back in the 1800′s the police and security
were called to remove the starving and polluted
people. Well, it’s the early 2000′s now.
Still the leaders like to go in front of the
many followers and proclaim the grandness
of the way.
Ethics in society may have something to do with
industries’ abilities to keep the promises that
those industries make to their Governments and
to the people.
Are they trying to change the subject from those
promises made without ever admitting that the
promises to Gov. and people were made.
“Emmert suggests carbon dioxide (CO2) in the thermosphere might play a role in explaining the atmospheric collapse.” Prokaryotes, @ 15.
Could it be something a simple as the density of the atmosphere increasing because of all the added CO2 mixed in is just making the “air” heaver and thus compress a bit?
Obama is one guy, and he’s new to politics relatively speaking, when compared to others. Republicans and the Bush administration had 8 years where they aggressively purged the gov’t of anyone who was progressive and replaced them with people who will tow the Republican party line. All those people still have their jobs. Why anyone thinks that Obama could turn this around his first term is unrealistic. He needs two terms, then we need to elect another progressive for another eight years. Keep in mind Obama has to stay alive to bring about change, and he needs a lot more help/pressure from the people to make it happen. I hope he gets it.
Atmosphere analogy balloon.
“So, the air you blow into a balloon creates pressure that causes the balloon to expand (& this pressure is generated as all the molecules of nitrogen, oxygen, & carbon dioxide move about & collide with the walls of the balloon). However, the total pressure generated by the air is due in part to nitrogen, in part to oxygen, & in part to carbon dioxide. That part of the total pressure generated by oxygen is the ‘partial pressure’ of oxygen, while that generated by carbon dioxide is the ‘partial pressure’ of carbon dioxide. A gas’s partial pressure, therefore, is a measure of how much of that gas is present” http://people.eku.edu/ritchisong/301notes6.htm
DOJ’s excuses are bullshit, but even if they aren’t the symbolic message is horrible- naked genuflecting to the coal industry.
Considering the fact that one of the few sensible courses of action would be to seize the power plants and convert them into enhanced efficiency BECCS (Bio-Energy with Carbon Capture and Storage) power plants by force, this is appalling. This takes away legal action that could be used to bankrupt the coal fired power plants, and give the government authority to seize them.
Obama is much better than Bush, of course.
But we don’t need “better” – we need “best” at this point.
Do something!!
The status quo is killing us!
Coach: Could you go over the last 2 paragraphs again? The ones about the recusing and so on.
Hasn’t Obama appointed a new Attorney General? Didn’t the DOJ hear about the last election?
I keep trying to figure out how this fits with the regs they intend to roll out in January. My first reaction was that they are going to lose the political cover of nuisance lawsuits …
I am disgusted. This administration has become a corporate shill of itself. After all we did and the promises made…not to mention the precarious state of the planet, I can only say I have one thing to say about obama… he is a “Corporatist Coward!”
We are going to get creamed in the elections, Dems are mostly cowards except for a few like Weiner and Greyson. And they’ve made it clear they
are going to subpoena this administration to death.
I continue to feel totally betrayed. And, I weep for my 9 year old daughter who still goes to school with the hopes Obama promised us all…
The sellouts just keep on coming…
On a more literal note, California is the most energy efficient state specifically because we regulated our own industries… same for our cars and even our renewable energy goals… and it pushed the whole nation to get a bit (not much, unfortunately) better.
I would love to post the email just sent to the administration, but it was way too derogatory to print…
One disgusted human…
Republicans and the Bush administration had 8 years where they aggressively purged the gov’t of anyone who was progressive and replaced them with people who will tow the Republican party line.
i need to know the 8 supreme court justices leader and yhu
cant tell meh %#$^!!!! why thank yhu for yhur time
sorry for beening rude