With all attention focused elsewhere, a key federal court handed climate and clean energy advocates a major surprise victory yesterday.  In the case, State of Connecticut v. American Electric Power Co. [pdf], the Second Circuit Court of Appeals ruled that a group of eight states, three land trusts and New York City could sue some of the country's biggest producers of global warming pollution and force them to clean up their acts.  This decision will likely spur a flood of follow-on court cases and will create increased pressure from corporate boardrooms for the Senate to finally act on climate change.  This case is likely the most important ruling on the subject since the Supreme Court's decided over two years ago that global warming pollution was air pollution in Massachusetts v. EPA.  This decision should remind us of the critical role that the judiciary has played in driving all of the major social change movements in the past century. 

Another Party Heard From

Why the surprise?  In recent months, the challenges of winning Senate approval for clean energy legislation and reviving the apparently stalled international negotiations leading up to the Copenhagen conference have completely dominated the bandwidth for activists and observers, with only a few brain cells left even for EPA's efforts to establish the first rules ever for global warming pollution. It is not surprising, then, that yesterday's decision by federal appeals court has mostly flown under the radar, getting attention only from the kind of legal wonks that delight in the complicated intricacies of the federal Clean Air Act. 

No one can accuse the courts of acting in haste, and part of the surprise came from the length of time that the case has been pending.  Connecticutt v. EPA was first filed five years ago, in 2004, and was argued in the appeals court three years ago after a district judge had ruled in favor of the polluters.  Interestingly, one of the three original judges on the panel that heard the case was Judge Sonia Sotomayor before she was tapped for the top court.  Some insiders speculated at the time of her confirmation that this decision may have been delayed to avoid having it become an issue in her Senate hearings. 

Making a Nuisance of Themselves

In brief, the states and their allies claimed that putting large amounts of global warming pollution into the atmosphere was a public nuisance, and that the courts needed to require the polluters to control their emissions.  The case targeted five of the nation's biggest greenhouse gas polluters and coal power generators: AEP, the Southern Company, TVA, XCEL and Cinergy. Collectively, these companies are responsible for about a quarter of the coal plant emissions in the country and a tenth of the total greenhouse gases.

So what's a nuisance? Long before we had environmental statutes like the federal Clean Air or Clean Water acts, courts have recognized a common law right to protection from pollution that harmed the property or health of neighbors.  As it is sometimes explained in law school, "your right to swing your arm ends where my nose begins."  Over the years, nuisance law has been used for cases like acute smells from hog farms, fish kills in rivers or toxic clouds from the steel mills.  Importantly, courts have decided that the federal common law right to sue for a nuisance goes away if Congress adopts a statute that defines protections in the same area. This was a major reason that the federal Clean Air and Clean Water Acts were passed in the early 1970s -- major companies were getting increasingly concerned about their exposure to nuisance complaints and lobbied Congress and the Nixon Administration to adopt an overall framework that would "occupy the field."  In general, the one thing that corporations hate worse than government mandates is uncertainty and exposure to liability at the whims the court system and juries. 

Is It a "Political Question" When Congress Is Silent?

The main argument that the utilities have used in convincing court to throw out climate change cases is that curbing global warming is a "political question" that should be decided by the legislature or the executive, not the judiciary.  They argued, for example, that the international climate negotiations make this a subject that only Congress and the President can deal with under the Constitutional provisions defining the authority to enter into treaties.  The court dismissed this argument, noting that the states were only asking it to limit emissions from six power plants that were spewing massive amounts of global warming pollution into the atmosphere. It also rejected claims that the factual issues were too complex.  The court cited complicated disputes between states over cross-border pollution going back over a century that have been successfully resolved under nuisance law.  The court also rejected arguments that the states and allies lacked "standing" to bring these claims.  It recognized that the impacts of global warming were clearly affecting health, property and environment in the states and ruled that they had a right to protect its citizens in court. 

The court concluded by paraphrasing the leading Supreme Court case allowing states to sue for cross-border water pollution:  "'It may happen that new federal laws and new federal regulations may in time pre-empt the field of federal common law of nuisance. But until that comes to pass, federal courts will be empowered to appraise the equities of the suits alleging creation of a public nuisance' by greenhouse gases." (emphasis added).

What's Next?

Because the case had been dismissed by the lower court, the appeals court kicked it back down for a full trial to determine the extent of the harm and the remedy -- including potential controls for the power plants.  Most observers think that an appeal to the Supreme Court is nearly certain -- putting the case back on Justice Sotomayor's desk. Although many will try to dismiss the Second Circuit as left-leaning, it is worth noting that the two judges who decided the case were both Republicans appointed by the two Presidents Bush.

The other main expected legal repercussion is opening the flood gates to other nuisance and common law cases arguing for controls on major global warming polluters or monetary damages.  One case that observers are watching closely involves the Village of Kivalina in Alaska.  This suit pits a small native village which had to be relocated due to sea level rise and erosion against corporate giants like Exxon-Mobil.  The lead plaintiffs attorneys include Seattle's famed trial lawyer Steve Berman (who lead a team of states on the tobacco claims) and Matt Pawa, who represented the land trusts in yesterday's AEP case.   Following the strategy used in tobacco and asbestos cases, the Kivalina plaintiffs are arguing that fossil fuel corporations and trade associations engaged in a massive conspiracy to hide the facts on global warming and "greenwash" their images.  One conservative advocacy group has called this "the most dangerous litigation in America."

More than One Way Home

As NRDC's superlawyer David Doniger points out, yesterday's decision is an important reminder that there are three branches of government and three routes for the nation to get control of global warming pollution: congressional legislation, rulemaking by the executive under the clean air act, and judicial action.  We strongly agree with David that the best route is comprehensive congressional action on clean energy and climate.  This prospect has finally been teed up by the House's approval of the American Clean Energy and Security Act in June.  The Senate needs to step up and pass an even stronger bill that President Obama can take to Copenhagen.  But the EPA's decision to move forward with rules under the Clean Air Act (itself prompted by the Supreme Court's direction to get moving in Massachusetts v EPA) and yesterday's ruling both show that we don't have to despair in the face of potential filibusters and congressional delay tactics.  The question is no longer if we are going to control global warming pollution -- it is how and when.  And just as the common law nuisance cases fueled demand from board rooms for comprehensive air and water legislation in the 1970s, it is virtually certain that this decision will help bring reluctant corporations to the congressional table. 

I'll give the final word to Matt Pawa, the attorney who helped develop the winning legal strategy:

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During the widely-watched Supreme Court re-argument Wednesday morning of Citizens United v. Federal Election Coalition – a case that challenges the constitutionality of over a century of campaign finance laws restricting corporate spending during elections – the Justices' varying opinions on corporations were on full display. While some, notably Ruth Bader Ginsburg and Stephen Breyer, expressed concern at the enormous influence of "mega-corporations" in politics, others seemed far more sympathetic to corporations' motives.

During an exchange with Solicitor General Elena Kagan (arguing on behalf of the FEC) over whether corporations should be permitted to influence policymaking, Justice Anthony Kennedy said:

Corporations have lots of knowledge about environment, transportation issues, and you are silencing them during the election. (52:7)

Later in the argument, Kennedy questioned whether it is appropriate to restrict ...

... the phenomenon of television ads, where we get information about scientific discovery and environment and transportation issues from corporations, who after all have patents because they know something. (73:5)

(Transcript here.)

Justice Kennedy's comments warrant some analysis, especially given their implications for the climate debate. (Most experts came away from Wednesday's argument expecting Justice Kennedy to join his conservative colleagues in striking down campaign finance restrictions.) Kennedy suggests that corporations have a right (a constitutional right, no less) to share their abundant knowledge about scientific discovery and the environment during elections. This assertion, however, is based on two horribly flawed premises:

Corporations' "goal" in spending money during elections is to share their knowledge.

Corporations have no way of sharing this knowledge other than spending money to influence elections.

The first is naïve. As General Kagan herself noted during argument (countering an assertion by Chief Justice Roberts that corporations have "diverse interests" in elections), corporations have "a fiduciary obligation to their shareholders to increase value. That's their single purpose, their goal." In other words, the reason a corporation tries to influence elections is to increase its profit, not to educate the masses.

The second is even more suspect. Does anyone believe that energy companies like Exxon Mobil face any difficulty sharing their "knowledge" and opinions regarding environmental policy? Here are a few of the many, many ways corporations like Exxon communicate with us:

Prolific, expensive, carefully-targeted advertising. This, of course, happens on a scale much greater than individuals, small non-profits, or campaigns can hope to match. ExxonMobil, for instance, for years ran a quarter-page "Op-Ad" on the editorial pages of the The New York Times and has recently been putting an ad on the front page of the Times about auto emissions.

Influencing judges. ExxonMobil, has funded fancy junkets to "educate" federal judges about climate change. Interestingly, Justice Kennedy himself agreed in an opinion (Caperton v. Massey Coal) handed down last Term that expenditures by CEO Don Blankenship of Massey Energy to influence a West Virginia state judicial election resulted in a serious conflict of interest when Massey came before the judge as a litigant. Implicit is the acknowledgement that corporate campaign expenditures can create, or appear to create, undue influence on elected officials.

Influencing "science." Corporations, especially energy companies like Exxon, fund and influence climate "research" and "experts" to cast doubt on climate change. Turning again to the Supreme Court's own record on this: in Exxon v. Baker – the 2008 case dramatically reducing the punitive damages awarded to the victims of the Exxon Valdez oil spill – Justice Souter (finding in Exxon's favor!) noted in a footnote that while the Court was aware of a "body of literature" supporting Exxon's claims regarding the efficacy of punitive damages, "because this research is funded by in part by Exxon, we decline to rely on it." (pp.27-28)

The list goes on.

In short, corporations have a huge, some would say detrimental, impact on environmental policy. Spending on elections may be the sole area where Congress and the courts have repeatedly determined it necessary to keep corporate influence out -- and this restriction ought to be kept in place.

Let's hope in his deliberation of Citizens United, Justice Kennedy realizes that while corporations may "know something" about the environment, that hardly justifies allowing them to spend unlimited money to influence the outcome of elections. If he doesn't, we could find ourselves with elected officials even more beholden to ExxonMobil.

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Justice Sonia SotomayorPhoto: White HouseEnviros are cheering for brand-new Supreme Court Justice Sonia Sotomayor, who was confirmed by the Senate on Thursday on a 68-31 vote.  Well, make that many enviros, not all. 

"We congratulate Justice Sotomayor on her historic confirmation to the high court, where her extensive experience will serve her well," said Sierra Club Executive Director Carl Pope. "With many of our nation's bedrock environmental laws under constant attack, Supreme Court decisions in coming years will continue to have far-reaching environmental implications."

Earthjustice President Trip Van Noppen also praised her confirmation, while acknowledging that she doesn't have much of a record on environmental cases: "Judge Sotomayor’s record evinces no clear bias in favor or against environmental issues, but instead reflects meticulous preparation, a balanced and thoughtful review, and a deep understanding of the law.”

The Sierra Club and Earthjustice were among dozens of green groups that formally backed Sotomayor in July, encouraging the Senate Judiciary Committee to approve her nomination.  In a letter [PDF] to the committee, the groups were generally complimentary about her thin record:

But green activist and Grist contributor Ken Ward contended last month that Sotomayor didn't deserve an endorsement from enviros.  "If there was ever a time when the U.S. Supreme Court requires a passionate, articulate and unabashed voice for the environment—another William O. Douglas—that time is now," he argued -- and Sotomayor ain't it. 

Jennifer Koons of Greenwire has a good rundown of the environmental topics that cropped up during Sotomayor's confirmation hearings. Get more on Sotomayor's green record from Grist's Kate Sheppard,
Joe Walsh of CleanTechies blog, and Earthjustice.

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If there was ever a time when the U.S. Supreme Court requires a passionate, articulate and unabashed voice for the environment -- another William O. Douglas -- that time is now. Should Waxman-Markey die in the Senate and the EPA be forced to regulate carbon emissions, the matter will likely land before the Justices and there are any number of other eco-catastrophes being handled as matters of law on which we desperately require the very best advocate the President can appoint.

If in the history of the environmental movement there was ever a call for bold, unequivocal and urgent leadership, that time is now. We stand on the precipise of cataclysm, from which we can withdraw only with vigorous U.S. action, and only U.S. environmentalists, in concert with climate scientists, can make that case.

Instead of acting on these imperatives, the President has nominated a former corporate lawyer to serve on the Supreme Court, whose "record evinces no clear bias in favor of or against environmental claims," according to the bland and blanket letter of endorsement issued by 60 some-odd environmental groups.

The cascade of reasons why Sonia Sotomayor is a bad choice and our response is so very wrong are so numerous and obvious that I find it difficult to single out which are the most onerous. Three points, at least, must be mentioned:

    1. Why didn't we call for appointment of an environmentalist?
    2. Why are we embarrassed to assert our convictions?
    3. Why have we connived to launder Judge Sotomayor's environmental record?

She is no Douglas. Earthjustice writes of William O. Douglas that,

In his dissenting opinion [in Sierra Club v. Morton], studied in law schools to this day, Justice Douglas expressed his concern for the environment and argued for the court to recognize the standing of inanimate objects of the natural world. "The critical question of 'standing' would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers and where injury is the subject of public outrage. Contemporary public concern for protecting nature's ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation. The voice of the inanimate object, therefore, should not be stilled."

Fifty years later, facing the catastrophe we accurately forecast and possessed of the only functional global solution, allied with a President who is beholden to us and, we think, share our analysis and prescription, and operating on a timeline measured in years, what do we do? We sign off on a Supreme Court nominee whose record is so bad that we must fudge it. A judge Michael Doyle's neatly sums up:

She's willing to grant standing to environmental plaintiffs but she doesn't reach aggressively for jurisdiction. Corporations sometimes win and sometimes lose. She can write clearly and directly about the importance of environmental protection, but she refrains from surging into poetry.

At this late, desperate hour we require leadership in every forum with the courage and poetry in language. Sotomayor is no Douglas.

Embarrassed by our own convictions. “She’s ruled both ways on environmental cases, so it’s not like she’s ideologically committed one way or another, and that’s not what we look for in a judge,”  Earthjustice President Tripp Van Noppen told Grist.

That's utterly ridiculous. Of course we want ideological environmentalists on the bench, there are no other kind and we are locked in an ideological cage match to the death.

It is ideology to consider other species as having the right to exist independent of our whims and irrespective of their utility to us, and I want a Supreme Court Judge who subscribes to it.

It is ideology to view air, water and our public lands as held in trust for the common good, and I want a Supreme Court Judge who believes this.

It is ideology to ask that the interests of generations not yet born be considered in the decisions taken today, and I want a Supreme Court Judge with a long view.

It is ideology to prefer the simplest, most efficient and least material solution, and I want a Supreme Court Judge with frugal sensibilities.

And so on...

Van Noppen apparentlys has a much lower standard in mind. “She’s likely to honor citizens’ rights to use the courts to enforce the law, because that’s the way those laws are written, and to use the authority of those agencies to carry out their mission as it has been created by Congress,” Van Noppen told Grist. In other words, Earthjustice awards Justice Sotomayor top marks for acknowledging plainly stated federal law.

The Sierra Club and Friends of the Earth joined Earthjustice in the endorsement, for anyone keeping a running score (David Brower must be spinning wildly at this point). Greenpeace USA also signed, forfeiting some of the high ground it staked out with its courageous opposition to Waxman-Markey. Rainforest Action Network stayed off the list, maintaining it's best-in-class record. A number of heavyweights signed on – NWF, National Audubon and The Wilderness Society, in particular – which means that the statement is both presented and understood as the position of U.S. environmentalists.

We are so enmeshed in the tangled skeins of pragmatism that it is difficult to recognize how self-destructive are our statements on Sotomayor. To put it in perspective, try to image any other major institution issuing a similar statement.

"Sotomayer ruled against labor half the time and that's why she's such a great nominee!" gushed SEIU Intl. President Andy Stern.

"Judge Sotomayor has handled abortion in an even-handed manner, that's why we support her so strongly," said Charmaine Yoest, President of Americans United for Life.

"Where federal law is written in plain English, Judge Sotomayor has no trouble reading it, and basic literacy is our standard for the Supreme Court." testified Rodney G. Moore, President of the National Bar Association

Laundering the record. "Judge Sotomayor’s record evinces no clear bias in favor of or against environmental claims," wrote the 60 environmental groups. I'd oppose the nomination on this analysis alone, as noted, but in my view, Sotomayor's slim record cannot even be read as value-neutral.

The single major case listed in Sotomayor's favor, Riverkeeper v. EPA, was an easy call (when it says "best technology available," that means, you know, that some sort of technology must be used; you can't just toss in a few new fish to make up for the ones you mangled in your cooling tower and call it even), and there are some distinctly uncomfortable Sotomayor decisions about which our 60 endorsing groups remain silent (see Environmental Law Update for full list)

Aguinda v. Texaco.  Sotmayor sided with two other judges to throw out a class action appeal by indigenous peoples of the Amazon basin, for lack of standing, who sought damages for decades of ruinous environmental practices by Texaco. Although the case was brought in the jurisdiction where Texaco's headquarters was located, Sotomayor ruled that plaintiffs were free to file suit in Ecuador, denying a series of claims – such as a requirement that each individual to be included in a 30,000 member class action must sign papers – that the Ecuador courts and legal system were inadequate to handle an intricate class action suit and susceptible to improper pressure. The case was refiled in Ecuador, right at the time Amnesty International launched a campaign challenging the integrity of the Ecuador judicial system and predictably, according to a close observor, "the challenges of indigenous groups against this petroleum behemoth have been all but squashed under the weight of Chevron-Texaco’s bottomless legal and public relations resources, as well as the political instability of the Ecuadorian Republic and its judiciary."

Environmental Defense v. EPA.  Environmental Defense, represented by Earthjustice challanged EPA's certification that New York City would meet Clean Air Act ozone standards by a 2007 deadline. "State of the art computer models show that the New York area will not meet clean air standards for ozone by the 2007 federal deadline without stronger pollution controls," stated Earthjustice attorney David Barron at the time, "yet EPA still signed off of the region's current smog control plans. We contend that deprives people the health protection the law requires." Sotomayor decided in favor of EPA and New York City failed to meet the 2007 deadline.

C'mon folks. We're not going to save the world and stuff if we are afraid to state our convinctions and too timid to press politicians to move way pass present political bounds.

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Sonia SotomayorGreen groups are throwing their weight behind Sonia Sotomayor, President Obama's nominee to the Supreme Court, even though she doesn't have much of a record on environmental decisions and hasn't always ruled in favor of enviros. 

More than 60 environmental and Native American groups -- including the Sierra Club, Earthjustice, Greenpeace USA, the League of Conservation Voters, and the Center for Biological Diversity -- have sent a letter [PDF] to leaders of the Senate Judiciary Committee offering unqualified support for her nomination.  The Senate Judiciary Committee will be holding confirmation hearings on Sotomayor this week.

"Despite her long tenure on the federal bench, Judge Sotomayor has sat on relatively few environmental cases," the groups write in their letter. "Judge Sotomayor’s record evinces no clear bias in favor of or against environmental claims. Instead, it reflects intellectual rigor, meticulous preparation, and fairness. ... Her impeccable credentials, wealth of experience, and exceptional legal mind will benefit the Court and the nation."

Sotomayor's most significant environmental ruling was in the case Riverkeeper, Inc. v. EPA, heard by the U.S. Court of Appeals for the Second Circuit in 2007.  As Kate Sheppard explains in an examination of Sotomayor's green record, the case centered on whether the U.S. EPA should be allowed to consider the cost-effectiveness of measures to protect fish and other aquatic life in rivers and lakes near power plants. Sotomayor sided with the enviros, writing what Earthjustice calls "a careful 80-page opinion upholding critical Clean Water Act safeguards." The Supreme Court later reversed that ruling.

Environmental issues are not expected to figure prominently, if at all, in Sotomayor's confirmation hearings. But if she's confirmed, she'll play a major part in shaping environmental law.

"As recent, closely divided decisions demonstrate, the Supreme Court is playing a crucial role in environmental protections," says Glenn Sugameli, senior policy counsel at Earthjustice. 

Climate change, the biggest environmental issue of all, may come before the court again soon.  In its landmark 2007 ruling on climate, Masschusetts vs. EPA, the Supreme Court cleared the way for the federal government to regulate greenhouse gases.  If Congress passes a climate bill this year, the legislation will “will face of barrage of legal challenges from industry, some of which will find their way to the high court,” says Richard J. Lazarus, a director of the Supreme Court Institute at Georgetown University Law Center. 

In its most recent session, the court has not been favorable to environmental protection. Reports The New York Times:

Of course, Sotomayor isn't likely to change that dynamic.  She would replace retiring Justice David Souter, who was a dependable vote on environmental cases.  Environmentalists' best hope is that she will follow his lead -- and that Obama will get to appoint one or two more justices. 

-----

Here's what the 60-plus enviro groups wrote about Sotomayor's green record in their letter to the Judiciary Committee [PDF]: 

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President Obama today selected Sonia Sotomayor as his first nominee to the U.S. Supreme Court. If confirmed, she would become the first Latin American and only the third woman to sit on the highest court in the land.

The hot topic of conversation surrounding her nomination is affirmative action, but over in Gristland, we're wondering, just how green is she?

Sotomayor's limited record on environmental cases is pretty promising, indicating that she will likely follow in the footsteps of the justice she would replace, David Souter, who was a reliable green vote.

"This is the best Supreme Court nomination in many years," EarthJustice President Tripp Van Noppen gushed to Grist. "She's got more judicial experience than any nominee in 70 years, more federal judicial experience than any nominee in 100 years ... She's very strong in terms of experience."

He acknowledged that she doesn't have many major environmental decisions to her name, but said that her record indicates she will be faithful to the rule of environmental law.

"She's ruled both ways on environmental cases, so it's not like she's ideologically committed one way or another, and that's not what we look for in a judge," said Van Noppen. "We look for a willingness to be fair in applying the law."

The most significant environmental case in Sotomayor's record is her ruling in 2007's Riverkeeper, Inc. v. EPA. The case centered on whether or not the Environmental Protection Agency should be allowed to consider the cost-effectiveness of measures to protect fish and other aquatic life forms in rivers and lakes near power plants.

Sotomayor argued in her decision that the EPA should not use cost-benefit analysis to determine what technologies to use for cooling-water intake structures at power plants. The Clean Water Act says that these intake structures must use the "best technology available" to prevent harm to aquatic life (i.e., fish getting stuck on machinery, or smaller fish getting sucked right up into the system), but it doesn't specify what would qualify as such. Sotomayor argued that the determination should be based on the environmental benefit, honoring the original intent of the Clean Water Act:

In April, the Supreme Court overturned her decision in a 6-3 ruling in favor of the power companies – a major disappointment for enviros.

"[Sotomayor] took the line that we and most environmental groups would agree with, which I think is the proper construction of the statute," said Jay Austin, a senior attorney at the Environmental Law Institute. "This clearly shows that she understands these issues."

But Van Noppen also pointed to a 2004 case in the Second Circuit, Environmental Defense v. the United States Environmental Protection Agency, in which she sided against environmentalists who challenged the EPA's acceptance of a New York state plan to meet national air quality standards for ozone. She didn't author the decision, but agreed with the majority in deciding for the EPA.

Still, Van Noppen said her record indicates both that she acknowledges the rights of citizens to challenge regulatory authorities if they fail to uphold their legal mandate, and that she affirms the authority of environmental regulatory agencies. This perspective differs markedly from the one shared by the Supreme Court's four conservative justices – Antonin Scalia, Clarence Thomas, John Roberts, and Samuel Alito – who have repeatedly challenged both these premises.

"She's likely to honor citizens' rights to use the courts to enforce the law, because that's the way those laws are written, and to use the authority of those agencies to carry out their mission as it has been created by Congress," said Van Noppen.

Court is in order

If Sotomayor is confirmed, it won't shift the court on this and similar issues. Though Souter was appointed by Republican George H.W. Bush, he tended to side with the more liberal members of the court -- he was among the justices who sided with Sotomayor's original decision in the Riverkeeper case.

"I'm not sure any Obama appointee was going to be in the position to shift the court at this point, given that you're talking about replacing Souter's vote, and he was pretty good on all of our issues," said Austin.

Sotomayor was also a Bush appointee, named to the District Court for the Southern District of New York by President George H.W. Bush in 1991 and promoted to the Second Circuit by President Bill Clinton in 1997. Environmentalists are optimistic she'll follow Souter's example, voting for the most part with liberal justices Ruth Bader Ginsburg, John Paul Stevens, and Stephen Breyer. (The only justice counted as a swing vote on environmental issues is Anthony Kennedy.) In the next few years, new lawmaking on climate change is expected and several key climate cases could reach the high court. It was the Supreme Court which, in 2007, determined that the EPA has the authority to regulate carbon dioxide under the Clean Air Act if it determines that carbon dioxide is a threat to public welfare. The EPA concluded last month that it is in fact a threat, triggering the beginning of regulation of these planet-warming gases.

"The climate change decision two years was a landmark case," said Van Noppen. "Until that ruling came from the Supreme Court, there was a major obstacle in front of the EPA on moving forward on climate change ... Once that obstacle was removed, it gave a more sympathetic administration the ability to do some things, so that's a way that a Supreme Court decision could have a big affect."

It's quite likely that the Supreme Court will be again be tasked with determining some of the tough questions about just what is within the EPA's regulatory authority when it comes to climate change. Any regulations coming from the agency will inevitably meet challenge from industry, environmentalists, or both. And if Congress moves to write new law dealing with climate change more specifically by capping and putting a price on carbon dioxide, the new law will also meet a host of legal challenges which could eventually funnel up to the highest court in the land.

Meanwhile, there are also a number of suits in district courts challenging the legality of the various regional programs to regulate greenhouse-gas emissions that could become more pertinent if Congress doesn't write a new law this year. Industries that operate in multiple states have balked at the fact that they exist within different regulatory frameworks right now, and have raised the issue of whether this violates interstate commerce laws.

Other major issues that could come before the Court in the next few years include revisiting exactly what bodies of water are covered under the Clean Water Act, which has been a subject of debate for years because the original language in the legislation is not entirely clear. Whether or not wetlands and rivers and streams that exist only during certain seasons should be covered by the law needs to be decided, whether by new legislative language or a Court ruling.

The Endangered Species Act is another major environmental law almost constantly under litigation in district courts, and key decisions could funnel up to the Supreme Court in the near future. One area that could be ripe for a Supreme Court evaluation is the question of what existing laws can do to protect species threatened by climate change, an issue that environmentalists have raised repeatedly when it comes to the polar bear. The Center for Biological Diversity has filed suit in federal court against six agencies of the federal government on the basis that they have not addressed the impacts of warming on endangered species.

"Ultimately, the Supreme Court will probably have to decide how narrowly or broadly the courts are going to look at climate change policy," said Austin. By all indications, Sotomayor will side with the liberal justices on the issue.

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President Obama has chosen federal appeals judge Sonia Sotomayor for the Supreme Court.  The African American Environmentalist Association has an extended discussion of her energy and environmental views, reprinted below:

Judge Sonia Sotomayor [above] wrote an opinion in Riverkeeper v. EPA, 475 F.3d 83 (2d Cir. 2007), that the EPA was not permitted to engage in a cost-benefit analysis to determine “best technology available”; instead, it could consider cost only to determine “what technology can be ‘reasonably borne’ by the industry” and whether the proposed technology was “cost-effective” - which, she concluded, requires the EPA in turn to determine whether the technology at issue is “a less expensive technology that achieves essentially the same results” as the best technology that the industry could reasonably bear.

The case was a challenge to an EPA rule regulating cooling-water intake structures at power plants. To minimize the adverse impact on aquatic life (which could otherwise be trapped against the intake structure or, if small enough, sucked into the pipes themselves), the Clean Water Act requires the intake structures to use the “best technology available,” without specifying what factors the EPA should consider in determining what constitutes the “best technology available.”

Judge Sotomayor explained:

“assuming the EPA has determined that power plants governed by the Phase II Rule can reasonably bear the price of technology that saves between 100-105 fish, the EPA, given a choice between a technology that costs $100 to save 99-101 fish and one that costs $150 to save 100-103 fish. . . could appropriately choose the cheaper technology on cost-effectiveness grounds.”

On this issue, Sotomayor remanded to the EPA, finding it “unclear” how the EPA had arrived at its conclusions and, in particular, whether the EPA had improperly weighed costs and benefits.

Sotomayor also held that the EPA could not consider restoration measures — such as restocking fish to compensate for fish killed by an intake system — when determining the best technology available for a particular power plant. Sotomayor wrote that “[r]estoration measures are not part of the location, design, construction, or capacity of cooling water intake structures, and a rule permitting compliance with the statute through restoration measures allows facilities to avoid adopting any cooling water intake structure technology at all, in contravention of the Act’s clear language as well as its technology-forcing principle.” Finally, Sotomayor also determined that, at a minimum, EPA’s determination that the CWA provision at issue applies to existing and new facilities was a reasonable interpretation of the statute.

The industry plaintiffs filed petitions for certiorari, which the Supreme Court granted in April 2008 to review the cost-benefit issue. AAEA attended the December 2, 2008 Oral Arguments at the U.S. Supreme Court. By a vote of 6-3, the Court reversed. In an opinion by Justice Scalia, the majority deemed “t . . . eminently reasonable to conclude that” the CWA’s silence with regard to determining the best technology available “is meant to convey nothing more than a refusal to tie the agency’s hands as to whether cost-benefit analysis should be used, and if so to what degree.” [Source: Supreme Court of the U.S. (SCOTUS) Blog]

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On Thursday, Rep. Nydia M. Velázquez (D-NY), chair of the House Committee on Small Business, issued a statement responding to the controversy over an interagency memo critical of the EPA's endangerment finding (see here, here, here):

When the interagency memo first got press on Tuesday, a source at the OMB told AP that the comment was written by a holdover from the Bush administration at the Office of Advocacy. If that OMB source was referring to Shawne Carter McGibbon, the acting chief counsel of that office, Velázquez has reason to object. McGibbon was appointed by Clinton -- "from the Bush administration" is a bit slick.

As for the concern that carbon regulations will rain Big Government Hell on churches and small businesses and donut shops and pony rides, EPA administrator Lisa Jackson explained it (again) to Sen. John Barrasso (R-Wyoming) this week:

Under the Clean Air Act [the EPA already has] the potential to regulate all those sources you talk about now for other contaminants -- schools and hospitals and farms and Dunkin Donuts -- and we don't, because we make regulations smartly, to address the threats in the best way possible, with an eye toward understanding that we don't want to unduly affect those who can least afford to pay.

Nothing mandates that the EPA regulate every possible minor source. The agency can decide what balance of public health and economic concerns is appropriate. But what the Supreme Court decided is that the language of the CAA is purposefully broad: it is a hedge against future air pollutants that might endanger public health. If carbon dioxide emissions are a danger to public health, then the EPA has the authority to regulate them under the CAA and must do so or supply a good reason why not.

In other words, SCOTUS decided that the Clean Air Act is "designed for the purpose of regulating greenhouse gases."

If the machinery of NAAQS and PSD and BACT isn't well-suited to greenhouse gases (and it isn't), then it should be changed (preferably to output-based standards). One way or another, Obama's EPA will be sensitive to economic and political considerations like the ones raised in the memo. The administration has every incentive to avoid this battle by finding a legislative solution. It has every incentive not to want to hurt small businesses.

But the administration has to act.

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What might the retirement of Supreme Court Justice David Souter mean for the environment? Probably not a lot.

Though he was appointed by President George H. W. Bush, Souter has proven a reliable member of the court's liberal wing, so if Obama appoints another liberal, don't expect much change.

Souter voted with the majority in the landmark 2007 climate-change case Massachusetts v. EPA, in which the court found that greenhouse gases are "air pollutants" under the Clean Air Act and therefore the EPA has the authority to regulate them. That decision laid the groundwork for the EPA's finding in April that greenhouse gases pose a danger to public health and welfare. Now the EPA is working to develop regulations for CO2 and other planet-warming pollutants.

Also in 2007, Souter wrote the unanimous majority opinion in Environmental Defense, et al. v. Duke Energy Corporation, which found that Duke Energy violated the Clean Air Act when it modernized coal plants without installing better pollution-reduction equipment.

More on Souter's environmental record from Legal Planet, where Ann Carlson writes, "Although Souter has been a reliable vote, he has not been an important environmental voice on the court, authoring none of the most significant environmental cases in recent years."

UPDATE: Earthjustice has just put out a statement about Souter's retirement from Glenn Sugameli, their senior legislative counsel:

Retiring Supreme Court Justice David H. Souter has a distinguished, lasting legacy of upholding laws that safeguard our environment.
 
President Obama’s selection of a new Justice will likely determine the fate of basic environmental safeguards for decades to come.
 
For example, four of the remaining Justices unjustifiably attempted to gut the Clean Air Act’s global warming provisions, and to reinterpret the Constitution to selectively prohibit access to court in the 2007 Massachusetts v. EPA case. In that case, Justice Souter’s vote was decisive.
 
One more vote would have blocked any state or citizen court challenge to the Bush EPA's refusal to enforce Clean Air Act global warming provisions, while allowing polluters to file lawsuits against any global warming regulatory safeguards that might cost them money. Obama’s EPA recently declared that greenhouse gases pose a serious threat to public health in response to the Supreme Court’s decision in that case.
 
President Obama has the opportunity to select a new Justice with a record that shows respect, understanding and sensitivity to environmental laws that protect all Americans.
 
Polluters have asked judges to invalidate and to rewrite key safeguards in the Clean Water Act, Clean Air Act, and other statutes that protect the health, safety, and rights of workers and consumers.  It is vital that the Supreme Court continue to reject these unjustifiable arguments that could threaten decades of progress in cleaning up our environment and protecting our families and communities.

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Photo: bbum

In a big setback for whales and environmentalists, the U.S. Supreme Court has yanked restrictions on sonar use in Navy training exercises near the California coast. The court, which split 5-4, didn't quibble with the Navy's own estimates that sonar can lead to substantial and irreparable harm to whales. However, the majority opinion stated that those concerns are "plainly outweighed by the Navy's need to conduct realistic training exercises."

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The U.S. EPA has neglected to pursue hundreds of potential violations of the Clean Water Act because of regulatory uncertainty, according to an internal memo. The lack of clarity stems from a 2006 Supreme Court ruling that left plenty up in the air about the types of waterways and wetlands that fall under EPA jurisdiction. The confusion has had "a significant impact on enforcement," wrote an EPA enforcement and compliance official in a March memo to the agency's assistant administrator for water. From July 2006 to December 2007, said the memo, the EPA failed to pursue 304 cases that would have clearly violated the Clean Water Act before the court's ruling. The agency also chose to "lower the priority" of 147 other cases. The memo was released Monday by Reps. Jim Oberstar (D-Minn.) and Henry Waxman (D-Calif.), who stated that they have "grave concerns over the current status of implementation of the Clean Water Act" and asked that the EPA provide information about its enforcement process.

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John G. Roberts (left) and President
Bush.

Photo: The White House/Eric Draper.

Not only are the far-right Family Research Council and the biz-friendly U.S. Chamber of Commerce raving about President Bush's nominee for the Supreme Court, but plenty of liberals have glowing words for John G. Roberts Jr. too. Georgetown law professor Richard Lazarus, a Democrat and environmental lawyer who's known Roberts since their days together at Harvard Law School, enthusiastically told National Public Radio that Roberts is a "very decent, a very fair-minded individual ... he's obviously an incredibly smart person."

There's no joy to be found in environmental-activist circles, however, where the nomination has been greeted with cautious but real anxiety. Roberts has had a long and shiny career as part of D.C.'s conservative legal elite, including stints as a political appointee in both the Reagan and George H. W. Bush administrations and stretches as a successful corporate lawyer, but only two years of judicial experience on the U.S. Court of Appeals for the District of Columbia Circuit. So eco-advocates are sifting through the records of his cases and decisions, trying to read the tea leaves on what sorts of havoc might be wreaked on the environment by a nominee who's gotten a thumbs-up from Pat Robertson.

In 2002, Roberts stepped in for his friend Lazarus, who had a teaching conflict, to argue in front of the Supreme Court on behalf of the Tahoe Regional Planning Authority, successfully defending the agency's right to restrict development around Lake Tahoe. The court's decision in the case was considered a major setback for the property-rights movement.

Judging from Republican talking points on Roberts, which stress bringing up the Tahoe case whenever his environmental values are questioned, this may be the isolated bright spot in a gloomy -- if thin -- environmental record.

As deputy solicitor general under the first Bush administration, Roberts successfully argued before the Supreme Court in 1990 that members of the National Wildlife Federation did not have standing to sue the federal government over a mining project on public land.*

Roberts (left) and Bush, out for a stroll.

Photo: The White House/Eric Draper.

In 2001, Roberts filed an amicus brief on behalf of the mining industry arguing that West Virginia citizens whose health and property were damaged by mountaintop-removal mining had no right to sue the state for damages in federal court under the federal Surface Mining Control and Reclamation Act. The 4th Circuit Court of Appeals agreed, ruling against the citizen plaintiffs, and in the process overturning an earlier lower-court decision on a similar case in favor of citizen suits by a federal district court in West Virginia.

In 2003, as a judge, Roberts was a dissenter in the D.C. Circuit Court's 5-3 denial of a request to rehear its decision calling for the public release of Vice President Dick Cheney's energy task-force records -- essentially siding with the Bush administration on the matter. And in 2004's Sierra Club v. EPA, he rejected a lawsuit by the Sierra Club that sought to compel the U.S. EPA to more stringently regulate emissions of hazardous air pollutants from copper smelters.

But the bellwether case that's really raising the hair on the back of conservationists' necks is one that involves a little-known critter, and the potential for a significant challenge to the foundations of federal environmental law.

"A major question needs to be [Roberts'] views on the federal government's authority under the commerce clause [of the Constitution] to protect clean water, endangered species, and other vital resources," said Glenn Sugameli, senior legislative counsel with Earthjustice, a nonprofit public-interest law firm.

He's referring to Rancho Viejo LLC v. Norton, a 2003 case before the D.C. Circuit Court in which Roberts questioned the constitutionality of protecting California's arroyo toad from a planned development under the federal Endangered Species Act. In particular, Roberts argued that the federal government's enforcement powers under the commerce clause might not apply in this case.

This opinion rang alarm bells for green advocates because most of the nation's keystone environmental laws, including the Endangered Species Act, the Clean Air Act, and the Clean Water Act, derive their power from legal rulings that have upheld the constitutional authority of Congress to broadly regulate interstate commerce. Many legal attacks on the Endangered Species Act and other federal environmental laws are now aimed directly at diminishing the scope of power Congress can wield under the commerce clause.

In Rancho Viejo, Roberts dissented from the majority decision that upheld the U.S. Fish and Wildlife Service's authority under the Endangered Species Act to protect the toad. In what are fast becoming the most famous words ever written by a judge in a minority opinion about an amphibian (and, let's face it, the funniest), Roberts questioned how interstate commerce was relevant to the case of a one-state species: "The panel's approach in this case leads to the result that regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating 'Commerce ... among the several States.'"

Legal decisions for decades have upheld the federal government's right to regulate air, water, wild species, and other parts of the shared environment under the commerce clause. While some experts have said that Roberts was not arguing to overturn Rancho Viejo, but rather to send it back to a lower court to find a better legal foundation for protecting the toad, his manner of dissent may indicate that he adheres to the conservative "New Federalist" legal philosophy that would limit the federal government's ability to enforce cornerstone national environmental laws by giving more power over policy to state governments.

"No court has ever upheld a similar constitutional challenge to any federal wildlife statute," said Sugameli, "so the context in which he wrote this is troubling. This is a very important issue which may have implications for Clean Water Act provisions that protect water and wetlands, and other potential environmental issues."

Sugameli is not amused by Roberts' stab at humor, either: "I think the language he used is at least flippant at best ... that's the habitat where [the toad] lives -- the only habitat it can exist in. It's not like it's deciding, 'Gee, I like this better than my vacation home in Florida.'"

Other green groups are also finding little to laugh at in the Roberts nomination -- and yet they're not coming out swinging in an effort to scuttle it either. The Sierra Club's Carl Pope noted particular concerns about Roberts' Rancho Viejo and Sierra Club v. EPA opinions, yet in a markedly tepid press release stated the club's intention "to do a thorough review of his history both on the bench and as an attorney" and called on the Senate to do the same. Friends of the Earth echoed this approach: "We urge the Senate to proceed with caution, deliberation, and careful scrutiny as it prepares to take up the nomination of John Roberts," read a statement from FoE President Brent Blackwelder.

While greens are being circumspect, conservatives are not. "I think it's a question of why so many groups and individuals on the pretty extreme right when it comes to judicial issues, and a lot of people who are certainly not friends of federal environmental protections, are pushing so hard for Roberts," said Sugameli. "Do they know something about him that we don't?"

*[Correction, 22 Jul 2005: This article originally stated that Roberts wrote an article for Duke Law Journal supporting Justice Antonin Scalia's majority opinion in this case, Lujan v. National Wildlife Federation. In fact, Roberts' article was about Lujan v. Defenders of Wildlife.]

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