Friday, August 26, 2011

Court to Repubs: kill EPA climate regulations and you'll get blowback

The headline is my takeaway from this Jonathan Adler post at the Volokhs, although it may not be his. Here's the appellate court ruling, about whether actions risking the spread of the invasive species, Asian carp, require a preliminary injunction against a public nuisance:

. . . In our view, the plaintiffs presented enough evidence at this preliminary stage of the case to establish a good or perhaps even a substantial likelihood of harm – that is, a non-trivial chance that the carp will invade Lake Michigan in numbers great enough to constitute a public nuisance.... That does not mean, however, that they are automatically entitled to injunctive relief. The defendants, in collaboration with a great number of agencies and experts from the state and federal governments, have mounted a full-scale effort to stop the carp from reaching the Great Lakes, and this group has promised that additional steps will be taken in the near future. This effort diminishes any role that equitable relief would otherwise play. Although this case does not involve the same kind of formal legal regime that caused the Supreme Court to find displacement of the courts’ commonlaw powers in American Electric Power, on the present state of the record we have something close to it. In light of the active regulatory efforts that are ongoing, we conclude that an interim injunction would only get in the way. We stress, however, that if the agencies slip into somnolence or if the record reveals new information at the permanent injunction stage, this conclusion can be revisited.

(Emphasis added.)

American Electric Power was the attempt to bring a public nuisance case against a variety of companies for greenhouse gas pollution. The Supreme Court, with the support of the Obama Administration, threw the case out because the EPA was regulating greenhouse gas anyway. I argued a while back that the Obama Admin positioned itself this way to provide a disincentive to Republicans for killing (or more likely, defunding) Clean Air Act climate regulations and enforcement, that doing so would revive the public nuisance lawsuits.

Now we have a similar issue, expressly citing AEP, that warns that "somnolence" can bring about public nuisance injunctions. As I said in my previous argument, I'd rather have a public nuisance case and EPA regulations, but there is a reason behind Obama's strategy.

Somewhat tangential: Adler is an interesting type, btw. Previously I would've classified him as a delayer/lukewarmist, and dismiss as unimpressive his position of semi-supporting little other than a politically infeasible carbon tax. I think he may have shifted a bit, though, along with a few other conservative intellectuals who are having troubles with the anti-science positions on their side of politics.


John said...

Certainly the fact-based community might be able to appreciate that "the Obama Admin positioned itself this way to provide a disincentive to Republicans for killing (or more likely, defunding) Clean Air Act climate regulations and enforcement, that doing so would revive the public nuisance lawsuits."

However, the Republicans are not members of this community. Even IF they were to recognize the disincentive they would purposely devise something worse than the common atrocities currently planned for any and all elements of the EPA.

Boner and Cantor have both made it clear, in their unmitigated depravity, that NO hurricane Irene expenditures will be contemplated without corresponding spending cuts elsewhere. Look for the EPA attack to explode on this point.

Obama may well well be playing his multi-dimensional chess but his adversaries are not playing.

John Puma

Rattus Norvegicus said...

Not sure I buy your interpretation. The rejection of state claims in AEP was based on the fact the the feds (via the EPA and the Mass. decision) had the right to regulate GHG emissions via the Clean Air
Act. Should the feds choose not to regulate them, there really is no recourse for the states (absent a waiver). They can't regulate them.

This is entirely within my, admittedly layman's, understanding of the law. It is well rooted in well established principles of federalism. This is not a good thing, because we have one party which thinks that this is a political question rather than a scientific question, but I don't think that "somnolence" on the part of the federal agencies can change this decision in light of well established law.

Steve Bloom said...

OT: Eli, note that Samanta has gotten up to no good again, this time vs. Zhao & Running's plant productivity paper, and very much including another nasty press release. Some, innocent bunnies all, would say that it's pure coincidence that a bunch of Brazilain scientists seem to want really badly to find that there's nothing unfortunate going on in the Amazon, but I am confident that Eli is not such a bunny.

Brian said...

John - I'm sure I'm not the only lawyer who noticed the implication of AEP. The bad guys, the good guys, and the Obama Administration also understand it. If the bad guys carry out their threat next year or in subsequent years, this litigation gets revived.

Steve - what was key, IMO, wasn't that the CAA gave the right to regulate GHG emissions but that EPA was actually doing it. If they had the right but did nothing, then they fail to occupy the field and the common law claim can be reasserted. I should clarify that I'm not 100% sure this is a winning argument, but it's a pretty good one.

Brian said...

Arrgh, I said Steve but should've said Rattus.

Steve - you might get Eli's attention here but might have more luck on one of his posts.

Rattus Norvegicus said...


The question here is interesting. If the EPA is prevented by congress from enforcing GHG emissions, does it prevent states from regulating GHG emissions? Recent district and appellate decisions WRT wolves after congress statutorily removed them from the endangered species list do not bode well. Congress can modify laws that they have passed as they see fit. Since the affected states want to kill wolves wholesale (I live in Montana and they have decided that 1/3 of the wolf population dead this year is fine) this is not exactly parallel.

So here is my guess as to how this plays out. If the rethuglicans just defund the ability of the EPA to regulate GHG's they will win. If they get more radical and just say that the EPA has no right to regulate GHG's then they open up the avenue pointed out in your post.

In either case, I would not be sanguine about how the current SC might decide such a case...

Brian said...

States can regulate air pollution including GHGs, except for vehicles (it's complicated). Congress could pass a law prohibiting state regs, but that's not easy.

John Mashey said...

As Brian notes, it's complicated.
I assume people are familiar with the unique legal status of California with regard to the EPA?

Brian said...

The rule used to be that California could more-strictly regulate vehicles as part of a quite-reasonable compromise, because CA's air regulations preceded the Clean Air Act. Other states could choose the federal or California standard.

Bushies predictably mucked it up, California sued, and the issue got punted when Obama took office. The extent to which a malevolent prez can interfere with the option for California and other states to adopt a stricter California standard is unclear.