the Air Vent

Because the world needs another opinion

Holding back the craziness

Posted by Jeff Id on June 20, 2011

I’m not sure this if this is good news or not but it sounds good. My concern is that there may be detail in the ruling which increases/affirms power to the EPA over CO2.

Supreme Court Rejects Environmentalists’ Suit Demanding Power Plant Emissions Cuts

“If EPA does not set emissions limits for a particular pollutant or source of pollution, states and private parties may petition for a rulemaking on the matter, and EPA’s response will be reviewable in federal court,” the decision continues.

16 Responses to “Holding back the craziness”

  1. timetochooseagain said

    When in doubt as to the “goodness” of a decision, it is helpful to look at both the breakdown of the opinions and the opinions themselves. First tip off that this decision is at best a mixed bag: The opinion was delivered Ginsberg, one of the Court’s most insane leftists. The other clue is that Alito and Thomas found the reasoning of the majority opinion so flawed, that despite concurring in part and in the judgement, they authored and joined respectively in a concurrent opinion. It was:

    I concur in the judgment, and I agree with the Court’sdisplacement analysis on the assumption (which I make for the sake of argument because no party contends otherwise) that the interpretation of the Clean Air Act, 42 U. S. C. §7401 et seq., adopted by the majority in Massachusetts v. EPA, 549 U. S. 497 (2007), is correct.

    In other words, the Court leaned heavily on it’s prior, erroneous decision of Mass v. EPA that endowed the EPA wrongly with the authority to regulate greenhouse gases. Since the parties involve were not contesting that particular issue, it was impossible to address that in particular, but those Justices in particular could not-would not allow a lack of object to be mistaken for ascent. The judgement was correct, but the basis was wrong.

    http://www.supremecourt.gov/opinions/10pdf/10-174.pdf

  2. stevefitzpatrickick said

    The good news: the really nutty arguments will not be considered by Federal Courts.

    The bad news: The EPA will pass regulations on CO2 emissions based on those same nutty arguments.

    On balance, I think it probably is good news, since an essentially political/values question will be ultimately answered by elected politicians… so the EPA rules on CO2 can (and likely will) change with a change in control of the White House (unless the Republican is Romney!) If Obama wins re-election and the House stays in Republican hands, look for some political hardball compromises on what industries/sectors will be subjected to EPA CO2 rules.

  3. RB said

    Also from Ginsburg:
    “The court, we caution, endorses no particular view of the complicated issues related to carbon-dioxide emissions and climate change,” Justice Ginsburg wrote in her decision in the case, American Electric Power v. Connecticut, No. 10-174.
    http://www.nytimes.com/2011/06/21/science/earth/21warming.html

  4. stevefitzpatric said

    Justice Ginsburg: “The court, we caution, endorses no particular view of the complicated issues related to carbon-dioxide emissions and climate change”

    And if you believe that, I have a bridge in New York you may be interested in buying.

  5. pauldd said

    My take is fairly well-summarized in the press release of the American Tradition Institute, Environmental law center:
    From Dr. David Schnare, Esq.:

    “Today the Supreme Court unanimously ruled that federal common law nuisance claims cannot be brought against utilities for their greenhouse gas emissions. (American Electric Power Co. v. Connecticut, U.S., No. 10-174, 6/20/11). It wasn’t a surprise to any competent lawyer. Nor was this any kind of big win for those skeptical of climate change alarmism.

    The rest is here: “http://www.atinstitute.org/statement-from-american-tradition-institute%E2%80%99s-environmental-law-center-on-todays-supreme-court-decision-in-aep-v-connecticut/

  6. Jeff Id said

    Paul,

    Often my gut get’s me in the right direction without the detail. A few weird quotes from the judges and you can tell it isn’t a win for anyone.

  7. lucia said

    The bad news: The EPA will pass regulations on CO2 emissions based on those same nutty arguments.

    I think the EPA will pass regulations based on different arguments.

    My impression reading Volokh Conspiracy was:

    The previous Mass ruling says something like: “The EPA has to regulate CO2 emissions because it’s mandate under the clean air act says it has to regulate CO2 emissions.”

    The new ruling says, “When congress writes positive law regarding how we deal any nuisance of any sort, people can’t lodge nuisance suits for that thing. Following precedent, the Mass ruling says the clean air act– passed by congress– is a decision by congress to decide how we deal with CO2. That means that no one can file a nuisance suit based on common law”

    The various dissents are related to some justices grousing about what the EPA was previously required to do, but all agree that if Congress actually dealt with a possible even hypothetical nuisance of any kind, this bars lodging suits under common law. Basically: if positive law exists, common law vanishes.

    One practical implication is that as long as the precedential Massachusetts interprets clear air act as covering CO2, no one can lodge a nuisance suit. Whether anyone could lodge the suit if the Mass ruling did not cover CO2 is an open question. But since the previous case stands, no judge is going to permit a nuisance suit unless they first go back and overrule their previous ruling.

    Anyway, INAL but that’s what I got out of the discussion elsewhere.

  8. timetochooseagain said

    7-Other than a slight misreading of Mass v. EPA, and calling the concurrent opinion a “dissent” which is semantically wrong, your comment basically grasps what is going on.

    Your statement about what Mass v. EPA said was:

    “The EPA has to regulate CO2 emissions because it’s mandate under the clean air act says it has to regulate CO2 emissions.”

    In point of fact, the decision in Mass v. EPA was that the EPA had to either regulate or justify not regulating. As erroneous as the decision was, they did not force the EPA to regulate per se. The EPA could have-should have declined to find “endangerment”.

    Your only other error was in calling the Alito-Thomas concurrence a “dissent”-in fact, they agreed with the judgement (the plaintiffs did not have standing) and partially in the reasoning (given the Mass v. EPA finding and given the legitimacy of the EPA’s actions, which they procedurally could not question since they were not raised by the parties, the arguments the majority raised would reach the conclusions of their opinion.)

  9. Jeff Id said

    Lucia,

    That sounds like a reasonable win in terms of sanity. Of course nobody expected to clean up the EPA mess from this case.

  10. stevefitzpatrick said

    Lucia,

    The “nutty arguments” I was referring to are pretty much the same: that CO2 emitted a by entity A in Wisconsin (or in Rome, or in Sao Paulo) causes demonstrable harm to person B in Texas. The justification for a common law suit and for EPA regulation is in essence the same: harm is demostrable and significant. IMO, there is no clear demonstration of harm. And the ruling simply ignores that CO2 is globally fungible. It is crazy to assign harm done by only emitter (or only certain ones), with no connection to that emitter’s global contribution. Like I said, all pretty nutty.

  11. lucia said

    Your only other error was in calling the Alito-Thomas concurrence a “dissent”-in fact, they agreed with the judgement

    Yes. Sorry, I bungled that. I knew the ruling was unanimous, but picked the wrong word anyway.

    The EPA could have-should have declined to find “endangerment”.

    Am I correct to also understand today’s ruling to say that if the EPA had declined to find endangerment, today’s ruling still blocks the nuisance suit? The reasoning being that the clean air act regulations do hand the issue over to the EPA, and that closes off the nuisance suits under common-law? That’s the impression I got.

  12. timetochooseagain said

    11-I think that indeed their finding would apply if the EPA had not done so, but they refer frequently to the rule making being underway, implying perhaps that they think that the EPA has to actually be moving toward something, but I will have to keep reading the opinion to determine for certain.

  13. pauldd said

    Lucia asks: “Am I correct to also understand today’s ruling to say that if the EPA had declined to find endangerment, today’s ruling still blocks the nuisance suit? The reasoning being that the clean air act regulations do hand the issue over to the EPA, and that closes off the nuisance suits under common-law? That’s the impression I got.”

    You are correct. From the decision, page 12:
    “The Clean Air Act is no less an exercise of the legislature’s “considered judgment” concerning the regulation of air pollution because it permits emissions until EPA acts. The critical point is that Congress delegated to EPA the decision whether and how to regulate carbon-dioxide emissions from power plants; the delegation is what displaces federal common law. Indeed, were EPA to decline to regulate carbon-dioxide emissions altogether at the conclusion of its
    ongoing §7411 rulemaking, the federal courts would have no warrant to employ the federal common law of nuisance to upset the agency’s expert determination.”

  14. lucia said

    http://volokh.com/2011/06/20/thoughts-on-aep-v-connecticut/
    Here’s the bit that gave me the impression

    The critical point is that Congress delegated to EPA the decision whether and how to regulate carbon-dioxide emissions from power plants; the delegation is what displaces federal common law. Indeed, were EPA to decline to regulate carbon-dioxide emissions altogether at the conclusion of its ongoing §7411 rulemaking, the federal courts would have no warrant to employ the federal common law of nuisance to upset the agency’s expert determination.

  15. Pascvaks said

    The EPA is first and foremost political. While the current crop of appointees running this agency are ‘extremeists’ and Global Warming Nut-cases, the organization itself is as any other and will seek to protect its own existance and future. When the Right Wing took the House and narrowed the Senate in the last election the SES’s and civil service employees took note. With federal budget cuts looming high, expect the EPA to be more ‘level-headed” than ever. Is the stupidity crisis over and behind us, no way. Does Obama have to fail to win reelection in order for CO2 to be taken out of the EPA equation –by law? You bet! What’s going to happen between now and the next general election vis-a-vis CO2 and the EPA? A little this and a little that. Ain’t life a beach?

  16. Mark T said

    Mann should be aware of the pro-bono legal advice implications he may be receiving to file suit against Tim Ball.

    Mark

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