Comments Justin Pidot has made

  • 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

  • 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

  • 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

  • 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

  • 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, 12 months ago 7 Responses

  • a seat in the courtroom

    Robert's question requires a bit of a confession. I'm actually so dedicated (or insane) that I arrived outside the Supreme Court at 3:00 AM to join the public line.  

    In my defense, I was the 24th person in line - and there are only 50 seats.  I believe that the 50th person arrived sometime around 4:15.

    -JustinOn The justices speak posted 2 years, 12 months ago 7 Responses

  • It's the words, not the result

    I agree that the outcome may have little direct impact. However, the Court's decision may still be a big deal.

    It's the reasoning the Supreme Court might use in ruling against Massachusetts that worry me.  For instance, in portions of its briefs, EPA essentially argues that it should be able to read global warming out of the Clean Air Act because the agency believes that regulating greenhouse gases could cost too much.  I'd hate to see an opinion out of the Supreme Court adopt this view.  It could provide all sorts of ammunition for those seeking to undermine environmental law.On One way or the other, we're waiting for the next administration posted 3 years ago 2 Responses