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 is likely to make this an unproductive topic for questioning is that Judge Sotomayor really can’t say anything about deliberations in a pending case. So there probably won’t be much to talk about.
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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 […]
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 […]
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 […]
Matt Shudtz | July 8, 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 […]
Ben Somberg | July 7, 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 … […]
Holly Doremus | July 6, 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 […]
Rena Steinzor | July 2, 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 […]
Holly Doremus | July 2, 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 […]
Ben Somberg | July 2, 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 […]