The Sotomayor Hearing and the Climate Nuisance Case

by Daniel Farber | July 14, 2009

This item cross-posted by permission from Legal Planet.

Greenwire reports that one issue in the confirmation hearing may be a case involving climate change.  The plaintiffs sued under the federal common law of nuisance for injunctive relief against public utilities for their carbon emissions.  The case has now been pending before a panel including Judge Sotomayor for several years.

It’s definitely an interesting case. The district court held that the case presented a “political question” and hence was not justiciable.  This was a somewhat peculiar application of the political question doctrine, which applies when a case lacks any legal standards (like the reasonableness of the period required to ratify a constitutional amendment), or the Constitution assigns an issue to another branch of government (like impeachment), or the court would be interfering with the conduct of foreign affairs (like deciding the date on which a war has ended).  But courts hear nuisance cases all the time.  The district judge argued that the scale of the climate change issue made this case different, but the Supreme Court has never said that the importance of a case made it a “political question” — and certainly didn’t think so in Bush v. Gore.

It seems unlikely that the Second Circuit will affirm on the basis of the political question doctrine, but there are many other issues in the case.  Still, the long delay is peculiar.

What ...

Sunstein Watch: The Nominee Breaks Silence to Placate Cattle Ranchers; He Isn’t Sonia Sotomayor

by Rena Steinzor | July 14, 2009
Bowing to right-wing political pressure, Cass Sunstein, nominee for “regulatory czar” in the Obama Administration, broke months of official silence to plead his case with the cattle ranchers and agribusiness lobby who have engineered a hold on the nomination by Senator Saxby Chambliss (R-GA).  Sunstein’s move was all the more troubling because his absence from the public eye has included an across-the-board refusal to meet with or respond to any inquiries from a wide range of progressive groups and mainstream ...

Bursting the Bubble: Bottled Water & the Myth of Quality

by Yee Huang | July 13, 2009
Perhaps – as a byproduct of a recent, revealing report by the Government Accountability Office and the economic downturn – the bubble of market growth for the bottled water industry may finally deflate, if not outright burst.  Pop!  The report, released last Wednesday, further debunks the myth that the quality of bottled water is better than tap water (see also CPR Member Scholar Christine Klein's exploration of this myth). According to the GAO, regulation of bottled water is generally weaker ...

Privatize the Seas? If Only Solving Overfishing Were so Easy

by Rebecca Bratspies | July 10, 2009
In this month’s Atlantic, Gregg Easterbrook writes that privatizing the seas through use of individualized transferrable quotas (ITQs) is the solution to the grave problem of overfishing. Recently, NOAA Administrator Jane Lubchenco came out strongly in favor of ITQs (which the agency is calling “catch shares”), and has committed her agency to “ transitioning to catch shares ” as a solution to overfishing. Would that the solution to overfishing were so easy! Today, fisheries managers set a "total allowable catch" ...

Time for Clean Science, No?

by Matt Shudtz | July 08, 2009
On March 9, President Obama announced a science integrity initiative aimed at taking the politics out of science. In his memorandum that day, he laid out the broad principles and instructed the director of the Office of Science and Technology Policy (OSTP) to “develop recommendations for Presidential action designed to guarantee scientific integrity throughout the executive branch” - and to have the recommendations within 120 days. John Holdren has since been confirmed as OSTP Director. Yesterday, Tuesday July 7, was ...

A Final Look Back at the Supreme Court's 2008-2009 Term

by Ben Somberg | July 07, 2009
It was, as Greenwire put it, a rough term for environmental interests; in five separate cases the Supreme Court overturned rulings that environmentalists had favored. CPR Member Scholar Amy Sinden told the NYTimes of one of the themes: “It’s become a cliché to say the Roberts court is about the expansion of executive power ... and I think it’s true of these environmental cases as well. The court gave the Bush administration discretion. That certainly leaves the Obama administration with ...

Bush Administration Forest Planning Rules Struck Down -- Again

by Holly Doremus | July 06, 2009
Cross-posted by permission from Legal Planet. For much of the past decade, the Department of Agriculture regulations governing land and resource management planning in the national forests have been a kind of political ping-pong ball, bounced back and forth between administrations, and between the executive branch and the courts. Now the U.S. District Court for the Northern District of California has taken another swat at that ball. The planning rules are important because they govern the adoption of plans for ...

New Fish Consumption Advisory in California Another Lesson in the Problems with 'Risk Avoidance' Approach

by Catherine O'Neill | July 02, 2009
California has expanded its fish consumption advisory, warning people to curtail or eliminate entirely their consumption of nineteen species of fish caught off the Palos Verdes Peninsula in Los Angeles County.  Among the new advisory’s recommendations is that humans should avoid eating white croaker, topsmelt, or barred sand bass caught in an area extending more than 30 miles from the Santa Monica pier south to the Seal Beach pier, and that, additionally, women and children should avoid barracuda or black ...

Section 7 Status Quo Reinstated

by Holly Doremus | July 02, 2009
This item is cross-posted by permission from Legal Planet. Last week, Interior Secretary Salazar and Commerce Secretary Locke issued a press release announcing that they were withdrawing the Bush administration’s midnight rules relaxing the ESA section 7 consultation requirements. (Background on the Bush rules is here, here, and here.) The notice formalizing that decision has now been published in the Federal Register. As Congress authorized them to do in the omnibus spending bill, the Secretaries have flat-out withdrawn the Bush ...

Responsibility Without Accountability: Failed Cleanup in the Chesapeake Bay

by Rena Steinzor | July 02, 2009
The Chesapeake Bay watershed covers 64,000 square miles, measuring 200 miles in length and 35 miles at its widest point. The watershed is one of the most beautiful and economically productive in the world. Tourism, which depends to a large extent on the preservation of pristine environmental conditions, contributes billions of dollars to the economies of Delaware, Maryland, Pennsylvania, and Virginia. As Shana Jones recently wrote on CPRBlog, the Bay is plagued by so-called “nutrient loading,” a condition where a ...

Sunstein Nomination Approved by Senate Committee

by Rena Steinzor | July 02, 2009
As expected, Cass Sunstein's nomination for Administrator of the Office of Information and Regulatory Affairs (OIRA) was approved Wednesday by the Senate Committee on Homeland Security and Government Affairs. Senator Tom Coburn (R-Okla.) alone voted against confirmation (we’re guessing his vote was not motivated by concerns over Sunstein’s past support for cost-benefit analysis and strengthening the institution of centralized regulatory review.) Sunstein is expected to be approved by the full Senate soon. What now? In his confirmation hearing, Sunstein pledged ...

Drywall News Roundup

by Ben Somberg | July 02, 2009
A string of recent developments have brought the issue of contaminated drywall back into the headlines (we last wrote about the issue here). Last week EPA released the results of tests it did on two Chinese drywall samples taken from a Florida home. They found sulfur, as well as two organic compounds associated with acrylic paints (all not usually in drywall). They also found strontium at much higher levels than usual for drywall. On Thursday, the Consumer Protection, Product Safety, ...

Waxman's Food Safety Bill Would Go a Long Way Toward Fixing Regulatory Failures

by Thomas McGarity | July 02, 2009
On Wednesday, Representative Henry Waxman introduced a comprehensive “Food Safety Enhancement Act” (116-page discussion draft) to repair part of a federal food safety protection regime that has been badly broken for several decades. Waxman was joined by Representatives Diana DeGette, John Dingell, Frank Pallone, Bart Stupak, and Betty Sutton; the House Energy and Commerce Committee will hold a hearing on the issue on Wednesday, June 3. A key problem with the current system is that it employs regulatory tools developed ...

Pentagon Continues to Press Its Case for Behind-the-Scenes Interference at OMB

by James Goodwin | July 01, 2009
Earlier this month, representatives from the military and a number of defense contractors had a closed-door meeting with officials at OMB's Office of Information and Regulatory Affairs (OIRA).  The topic under discussion was ostensibly a Safe Drinking Water Act regulation for perchlorate—a highly toxic chemical used in the manufacture of rocket fuel—that the EPA is currently considering.  A closer look at the documents provided to OMB at the meeting suggests that the military officials and defense contractors had an even broader ...

Drywall Summer - An Update

by Ben Somberg | June 30, 2009
The drywall debacle continues. Inez Tenenbaum, President Obama's nominee for head of the Consumer Product Safety Commission, got a number of drywall questions from senators at her nomination hearing earlier this month.  They said the government response seemed too slow. Tenenbaum pledged she'd work on the problem, and was subsequently confirmed by a voice vote by the full chamber. The CPSC has posted somewhat more extensive information on its website about identifying possibly contaminated drywall.  Florida's Department of Health had ...

Waxman-Markey Analysis Round-Up

by Ben Somberg | June 29, 2009
Waxman-Markey passed the House.  Was it the right thing to do?  What's the outlook from here?  Here are a few views from around the web. Dan Farber: The concerns about measuring and enforcing offsets are genuine (and increased because of Waxman-Markey’s reliance on USDA to do the job.)  But those problems aren’t insurmountable either.  Instead of complaining about reliance on offsets or the inclusion of USDA, we need to think about how to improve the offset program. Matt Yglesias: When ...

Offsets in the USDA – The Bad, the OK, and the Unknown

by Victor Flatt | June 26, 2009
Wednesday, I explored the various ways that the USDA takeover of bio-sequestration offsets could affect how well the offsets provision of the Waxman-Markey Climate Security Act would work. Today, we have legislative language in the form of an amendment offered by Rep. Collin Peterson (D-MN), which fills in some of the details.  While some of the changes may be helpful, others are cause for worry. The amendment gives all offset authority over bio-sequestration and agricultural activities to the USDA – ...

The Peterson Compromises and the Question of

by Bradley Karkkainen | June 26, 2009
The House Agriculture Committee yesterday released the language of an amendment by Agriculture Committee Chairman Collin Peterson (D-MN), which Rep. Waxman has agreed to accept as part of the final House climate change bill in order to secure support from Peterson and other farm-state representatives. Peterson represents a large, heavily ag-dependent district in central and western Minnesota, and makes no apologies for his desire to protect the interests of farmers in his district and elsewhere. From that perspective, the Peterson-Waxman ...

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