Justin Pidot’s Posts

• What does the Massachusetts case mean?

  Some musings and analysis 5

  Posted 2 years, 7 months ago

  The discussion of Massachusetts v. EPA is well underway thanks to David's summary of the action. I'm going to provide some thoughts about each of the three issues involved in the case, as well as some of the possible implications.

  The outcome of Mass. v. EPA boils down to one thing: the Supreme Court has ordered EPA to think again. While that may not sound like much, in the world of administrative law, it is a total rout for the Bush administration.

  While the outcome is good news, this decision was as close as they come. I'm not surprised… Read More

• Saying 'no' to secrecy

  Judge refuses request for a closed courtroom in global warming case 0

  Posted 2 years, 7 months ago

  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.

• Is the government a criminal syndicate?

  The Supreme Court considers an extortion suit against federal land managers 2

  Posted 2 years, 7 months ago

  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… Read More

• Supreme Court to examine Endangered Species Act

  Justices agree to hear Defenders of Wildlife case 0

  Posted 2 years, 10 months ago

  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,… Read More

• Standing in the face of global warming

  Do federal courts have jurisdiction in Massachusetts v. EPA? 4

  Posted 2 years, 11 months ago

  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… Read More

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Justin Pidot’s Recent Comments

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  timing of waiver

  Eriga, I think there is some importance of timing.  

  If the Bush Administration refuses to act on California's waiver request, it may be difficult to convince the next administration (even if it's much more concerned about global warming), that it is reasonable to require the automobile industry to redesign vehicles by 2009.  Under the waiver provisions, EPA may have some ability to consider whether the California program gives manufacturers enough time before it comes into effect.  

  California itself gave manufactures 7 years between the time that Pavley was enacted and the time it was to have legal consequences.  If the Feds don't consider ratifying it until 2008, the industry will forcefully argue that 1 year is simply not enough time.

  That may not seem too convincing, after all, they've known about the law since 2002.  However, until EPA grants a waiver, the law doesn't have legal significance.On You heard it here first posted 2 years, 7 months ago 8 Responses

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  some droning words of caution

  I hope David's right, and Judge Sessions does dispose of the Vermont lawsuit tomorrow.  I'm optimistic, but my optimism is tempered by a few things.

  First, the preemption provision of the Energy Policy and Conservation Act (which creates the CAFE program) only apply to the states.  While the Supreme Court's statement (quoted by David above) provides excellent ammunition for Vermont, it does not necessarily dispose of the issue altogether.

  I'd be surprised if the Judge acts immediately.  Courts tend to like issues to be thoroughly briefed before they make up their minds.

  Second, the automakers were very crafty when they filed separate lawsuits against California, Vermont, and Rhode Island.  Each of these states lies within a different court of appeals (the First, Second, and Ninth for those of you counting).  While a Pavley win in Vermont may create some legal momentum, each court will decide their cases for itself . . . and then, of course, there's three different appeals to deal with.

  Having said that, I remain highly optimistic.  However, I expect it'll take a bit more time than David suggests.  

  I know I sound like a downer - but that's what they teach you in law school.  I guess I learned my lessons well.
  On You heard it here first posted 2 years, 7 months ago 8 Responses

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  legal experts discuss the cases

  The webcast of a panel discussion about Massachusetts v. EPA and
  Monday's other environmental Supreme Court case, Environmental Defense v. Duke Energy can be accessed here.
  
   The panel includes Professor Lisa Heinzerling (lead author of Massachusetts's briefs),  Sean Donahue (attorney for Environmental Defense), and two attorneys in private practice, Peter Glaser and William Bumpers, who both represent the energy industry.  The panel is moderated by Professor Richard Lazarus, a noted expert on the Supreme Court.On Some musings and analysis posted 2 years, 7 months ago 5 Responses

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  The role of Congress

  In response to David's question:

  Some argue that global warming regulation should be left to Congress.  I'm even sympathetic to this  - Congress should be involved.  However, I don't think this argument is particularly persuasive with respect to standing.  

  Other legal doctrines, like the political question doctrine, are intended to protect the responsibilities of each branch of our federal government. Under that doctrine, courts can decline to exercise jurisdiction over a case if it involves an issue committed to another branch.

  If the Supreme Court denies standing in this case, however, it will undermine the ability of Congress to enact future global warming legislation.  

  Imagine the following situation: Congress (perhaps sick of this case) decides to enact a law that specifically restricts greenhouse gas emission from cars and trucks.  The Bush Administration promulgates an absurd regulation, clearly contrary to the law, that allows cars and trucks to emit all the greenhouse gases they want.  

  This would be identical in terms of standing to the situation in Mass v. EPA. However, Congress would clearly have taken action.On Do federal courts have jurisdiction in Massachusetts v. EPA? posted 2 years, 11 months ago 4 Responses

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  The 2.5% figure

  The 2.5% number that Massachusetts relied on in their standing argument represents a projected 40% reduction in GHG emissions from domestic automobiles (once the regulations are fully implemented and the vehicle fleet has turned over).  U.S. auto emissions account for about 6% of total world emissions.

  In terms of their standing argument, Massachusetts faced some difficult choices.  As amazingdrx notes, it is possible (maybe even likely) that regulation under the Clean Air Act would force technology improvements that could reduce greenhouse gases even more.  Also, a Massachusetts win could pave the way for EPA regulation of power plant emissions under the Clean Air Act.

  However, the Court insists that litigants demonstrate standing, especially redressability, without relying on a speculative or overly attenuated chain of events.

  For instance, Massachusetts did provide declarations that suggested that other countries would likely adopt emission control technologies developed in the U.S.  However, the Massachusetts attorney stated that "although we believe we have shown other governments will follow suit, we are not in any sense relying on that"

  And this was probably wise.  Chief Justice Roberts didn't hide his distaste for the argument that other countries might follow the U.S. lead, saying "that strikes me as sort of spitting out conjecture on conjecture."  

  I don't know the inner workings of the brains behind the Massachusetts legal strategy, but my guess is that they tried to strike a balance.  On the one hand, they wanted to identify significant positive impacts that could flow out of the case.  On the other, they didn't want to give the impression that they were stretching.
  On The justices speak posted 2 years, 11 months ago 7 Responses