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 equally plain that the Act “speaks directly” to emissions of carbon dioxide from the defendants’ plants.
In a concurrence, Justices Alito and Thomas said they were taking this position only for the purposes of argument since no party had contested it. Notably, Chief Justice Roberts and Justice Scalia did not join them, so there seem to be six votes (plus Sotomayor) to uphold EPA jurisdiction at this point.
Finally, the plaintiffs are left with a possible claim under state law. The Court did not reach the question of whether that claim is viable since the issues were not briefed or argued.
Overall, this is about as good an outcome as could have been hoped for after oral argument. It also makes it more complex for Congress to repeal EPA jurisdiction since doing so would restore the federal common law claims.
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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 […]
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 […]
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 […]
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 […]
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 […]
Matt Shudtz | June 9, 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, […]
Ben Somberg | June 7, 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, […]
Robert Verchick | June 5, 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, […]
James Goodwin | June 3, 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 […]