Supreme Court Ruling in The American Electric Power Case

by Daniel Farber | June 20, 2011

Cross-posted from Legal Planet.

The Supreme Court decided the AEP case.  The jurisdictional issues (standing and the political question doctrine) got punted.  The Court said that the lower court rulings were affirmed by an equally divided court.  So far as I know, this is the first time that the Court has ever done that and then proceeded to a ruling on the merits.  (It would seem more appropriate to dismiss cert. as improvidently granted rather than issue an opinion on the merits.) This is actually good news: it means that there were four Justices to reject the political question doctrine and find standing.  Since Justice Sotomayor did not participate but wrote the lower court opinion, we know that five Justices would vote accordingly in another case. Hence, it seems clear that lower courts should not apply the political question doctrine in these circumstances and that they should extend standing to climate change cases beyond the strict confines of Massachusetts v. EPA.

On the merits, the Court held that the federal common law of nuisance regarding climate change is preempted by the Clean Air Act’s grant of jurisdiction to EPA to regulate greenhouse gases.  This part of the opinion strongly reaffirms the holding in Massachusetts v. EPA.  According to today’s opinions,

Massachusetts made plain that emissions of carbon dioxide qualify as air pollution subject to regulation under the Act. 549 U. S., at 528–529. And we think it ...

Chamber of Commerce Gets the Law Wrong in its Argument to the White House Against Listing BPA as a Chemical of Concern

by Matthew Freeman | June 20, 2011
As part of its ongoing campaign to derail health, safety, and environmental regulations that it regards as inconvenient to industry, the Chamber of Commerce sent a letter earlier this month to Cass Sunstein, Administrator of the White Hosue Office of Information and Regulatory Affairs, calling on him to push the EPA to suspend an initiative to list BPA and several other substances as "Chemicals of Concern." Today three Member Scholars of the Center for Progressive Reform sent a letter to ...

Administration Pandering to Anti-Regulatory Business Leaders Gets Cold Shoulder

by Matthew Freeman | June 17, 2011
The Washington Post reports today on the White House’s latest failed effort to extract political gain from the President’s misguided “regulatory look-back,” led with disturbing enthusiasm by Cass Sunstein, administrator of the White House Office of Information and Regulatory Affairs. The story tells us a lot about the thinking of the man who controls access to the President, and also lays bare a failing of the way the media covers regulatory issues. According to the Post, White House chief of ...

Climate Change Meets the Little Mermaid

by Robert Verchick | June 12, 2011
Copenhagen—Denmark’s famed "Little Harbor Lady," or in English, "Little Mermaid," has had her share of antics and perils. She’s been photographed by millions in Copenhagen’s harbor, carted off and shown at the 2010 World Fair in Shanghai, beheaded (several times), dynamited, splashed with pink paint, and enveloped in a Burqua. An environmental nerd for all occasions, I look at her longing face and wonder, How long before the rising sea swallows her up? Bolted to that rock in the sea, ...

New CPR Report Proposes Strategies for Climate Change Adaptation in the Puget Sound

by Yee Huang | June 10, 2011
The scope of climate change impacts is expected to be extraordinary, touching every ecosystem on the planet and affecting human interactions with the natural and built environment. From increased surface and water temperatures to sea level rise and more frequent extreme weather events, climate change promises vast and profound alterations to our world. Indeed, scientists predict continued climate change impacts regardless of any present or future mitigation efforts due to the long-lived nature of greenhouse gases emitted over the last century.  The ...

EPA Pulls Back the Curtain on More CBI Claims Regarding Toxic Chemicals' Safety

by Matt Shudtz | June 09, 2011
EPA announced Wednesday that staff from the Office of Chemical Safety and Pollution Prevention are making good on a promise to give the public increased access to health and safety studies about the toxic chemicals that pervade our lives. I applaud EPA for their work. Until Congress reforms TSCA to free EPA’s hand in regulating toxic chemicals, we have to rely too much on an imperfect alternative system, where public interest groups use publicly available data to inform the public about risks ...

Pawlenty Attacks Government 'Bureaucrats' For Shower Efficiency Requirements Enacted by Congress, Signed by George H.W. Bush

by Ben Somberg | June 07, 2011
How easy it is to make fun of those out-of-control, unelected government bureaucrats! The examples of their wild behavior are just so plentiful. Here's Tim Pawlenty in his big economic speech this morning (prepared remarks, video): Conservatives have long made the federal bureaucracy the butt of jokes. And considering some of the bureaucrats in Washington, and what they're actually in charge of doing -- like the strength of our showerheads, the vigor of our toilet flushes, or the glow of ...

Notes from the 2nd World Congress on Cities and Adaptation to Climate Change

by Robert Verchick | June 05, 2011
Bonn--At a climate conference in Germany, with lager in hand, I was prepared to ponder nearly any environmental insult or failure. But rat pee? Really?  The urine of rats, as it turns out, is known to transmit the leptospirosis bacteria which can lead to high fever, bad headaches, vomiting, and diarrhea. During summer rainstorms in São Paulo, Brazil, floodwaters send torrents of sewage, garbage, and animal waste through miles of hillside slums and shanties. Outbreaks of leptospirosis often follow the floods. And in ...

Sunstein Denounces SBA's 'Deeply Flawed' Study of Regulatory Costs

by James Goodwin | June 03, 2011
In testimony before the Senate Committee on Homeland Security and Governmental Affairs in mid-April, Cass Sunstein, Administrator of the White House’s Office of Information and Regulatory Affairs (OIRA), was asked to comment on a much-disputed $1.75 trillion estimate of the annual cost of federal regulations. The number comes from a report commissioned by the Small Business Administration’s Office of Advocacy, often referred to as the Crain and Crain report, for its authors. The $1.75 trillion estimate is grossly at odds with ...

Score: Utah 2, BLM Wilderness Protection 0

by Dan Rohlf | June 03, 2011
Few things in politics are certain, but it’s a safe bet that Barak Obama will not carry the state of Utah in his 2012 re-election bid. But despite its dismal electoral prospects in the state, the Obama Administration knuckled under to pressure from Utah and other western Republicans this week when Secretary of Interior Ken Salazar did an about-face on the Bureau of Land Management’s “Wild Lands” policy. The policy, announced by the Secretary less than six months ago, allowed ...

A Teachable Moment for the Obama Administration: Sunstein Should Address Wild Estimates on Regulatory Costs, Challenge Regulatory Critics on Misleading Study on the Cost of Regulation

by Sidney Shapiro | June 02, 2011
The Obama administration has been busy with its regulatory look-back, which required agencies to identify health, safety, and environmental standards to be reviewed in the coming months, with the possibility of eliminating or modifying them (in some cases, the specific proposal for modification or elimination was already made last week).   In explaining why the look-back is necessary, the administration sounds too much like the Chamber of Commerce or other anti-regulatory critics and not enough like candidate Obama, who once unapologetically ...

New CPR White Paper Tackles Industry Myths About BPA

by Lena Pons | June 02, 2011
For the last two decades, scientists have amassed evidence that bisphenol A (BPA) poses a threat to human health. BPA is a chemical used in the manufacture of polycarbonate plastic, can liners for food and beverages, and thermal paper used for register receipts. It is used in so many applications that the Centers for Disease Control and Prevention found traces of BPA in 93 percent of people it tested. Although scientists have targeted BPA as a public health concern, plastics ...

The Endangerment Litigation

by Daniel Farber | June 01, 2011
Cross-posted from Legal Planet. I’ve just spent some time reading the initial briefs in the D.C. Circuit on the endangerment issue.  They strike me as much more political documents than legal ones. A brief recap for those who haven’t been following the legal side of the climate issue.  After the Bush Administration decided not to regulate greenhouse gases under the Clean Air Act, the Supreme Court held that greenhouse gases would be covered if they met the statutory requirement of ...

OSHA Releases Self-Evaluation of its Role in Federal Response to BP Oil Spill

by Matt Shudtz | May 31, 2011
OSHA published a report (pdf) last week on its role in the federal government’s response to last year’s massive oil spill. Within days of the blowout aboard the Deepwater Horizon, OSHA officials were in Louisiana, working to ensure that the people involved in the response and cleanup had adequate protection from the myriad hazards they would face. The new report is mainly a list of accomplishments, not an introspective “lessons learned” self-evaluation that could have paved the way for policy changes that ...

The New BOEMRE-NOAA MOU: A Good Start, But More is Needed

by Holly Doremus | May 27, 2011
Cross-posted from Legal Planet. I was excited to read this story in the LA Times, saying that BOEMRE and NOAA had reached an agreement that would give NOAA more say in decisions to approve offshore drilling. (Draw whatever conclusions you like about what my geeky excitement says about how boring my life must be.) This agreement is certainly needed, as the Deepwater Horizon Oil Spill Commission has noted, and as I’ve written in this paper forthcoming in Boston College’s Environmental ...

Administration's Regulatory 'Look-Back' Announcement Panders to Industry, Focuses Primarily on Eliminating Regs, Diverts Agencies from Crucial Work

by Amy Sinden | May 26, 2011
Following up on President Obama’s January Executive Order calling for agencies to conduct a regulatory “look-back,” the Administration today released a target list of health, safety, and environmental standards to be reviewed by agencies in the coming months, with an eye toward eliminating or modifying them. The President’s January announcement was driven by politics, and from all appearances, the process of reviewing these regulations will be as well. In an op-ed in today’s Wall Street Journal, and in a speech ...

Sunstein to Outline Regulatory Review Plans; Industry Yawns; Public Health and Safety Agencies Lose out from Diverted Resources

by Rena Steinzor | May 25, 2011
Office of Information and Regulatory Affairs (OIRA) Administrator Cass Sunstein heads to the American Enterprise Institute Thursday morning to speak about federal agencies' plans to "look back" at and review existing regulations. Meanwhile, agencies statutorily obligated to protect public health and safety, such as EPA and OSHA, are diverting resources from pressing work so that they can structure and soon carry out a hunt for a supposed treasure of frivolous old regulations that need to be revised or eliminated. Strikingly, ...

The McAteer Report: A Mine Safety Blockbuster

by Thomas McGarity | May 19, 2011
The report issued this morning by the Governor's Independent Investigation Panel on the West Virginia mine explosion that killed 29 miners at the Massey Energy Company’s Upper Big Branch Mine just over a year ago will never make the New York Times best seller list. But it should be required reading for all policymakers with responsibility for protecting the safety of the workers who spend much of their lives deep underground digging coal. Although the Mine Safety and Health Administration ...
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