The Business Review of West Michigan interviews Peter Perez, the former CEO of the family-owned Carter Products Co. in Grand Rapids, who has joined the Department of Commerce as deputy assistant secretary for manufacturing in the International Trade Administration. His assignment is promoting domestic manufacturing through exports.

From, “Grand Rapids executive settles in to manufacturing role in Washington, D.C.“:

What are some of the obstacles in the way of companies that want to export their goods?
We business people, we like to operate where policies are clear and where things are certain. We need to emphasize that within our government, to try to give clear direction to manufacturing, and we need to increase our efforts to resolve trade barriers, which do exist in other parts of the world.

If we can have clear domestic policies and reduction in trade barriers, that certainly is going to be an obstacle we overcome.

There are export restrictions that were wisely put in place in the past that could be reviewed in order to increase our export opportunities. We also have an obstacle in the violation of intellectual property and products. In my own company, this was an area where we had to fight against Asian competition. We succeeded, but there’s a lot of evidence others have not been as successful.

And exchange rates — we need market-based exchange rates. That’s really the only way that we’ll have fair trade throughout the world.

Agreed! Indeed, the priorities cited by Perez are shared by the National Association of Manufacturers and detailed in the NAM’s “Blueprint to Double Exports in Five Years.” The NAM recently released the document with the American Farm Bureau Federation and the Coalition of Service Industries. Our news release is here.

The New York Times explicates President Obama’s goal of doubling U.S. exports within five years and reports, “Hurdles Deter Obama’s Pledge to Double Exports.” 

Opening access to foreign markets, especially the fast-growing developing countries in Asia and South America, remains a politically touchy matter that will require the cooperation of Congress. A free-trade agreement with South Korea that was negotiated under President George W. Bush and that has been endorsed by Mr. Obama still awaits Congressional ratification, as do agreements with Colombia and Panama, and important issues remain unresolved in each.

Even more critical, by some measures, is the rising strength of the dollar, which increases the cost of American goods and makes them less competitive. The dollar has risen in value relative to the euro and the pound and remains overvalued, in the view of many economists, against China’s renminbi.

The story cites the NAM’s “Blueprint to Double Exports in Five Years,” released last week, calling it a “detailed critique of United States trade policy.” The reporter then emphasizes currency issues, i.e., the relatively strong U.S. dollar and the Chinese’s valuation of its yuan, as an overriding factor. But as the Blueprint explains, it will take a broad array of action to achieve the goals outlined in the President’s National Export Initiative.

And some of those actions can be taken immediately, such as submission of the pending U.S. free trade agreements with Colombia, Panama and Korea to Congress for enactment.

The NAM released the trade paper last week with the support of the American Farm Bureau Federation and Coalition of Service Industries. Our joint news release is here.

The Fifth U.S. Circuit Court of Appeals today concluded that it could not form a quorum to hear an en banc appeal of the lawsuit claiming damages from global warming, Ned Comer, et al v. Murphy Oil USA, et al. Therefore, the court ruled, its earlier order that had the effect of dismissing the original suit stood.

Reached after a convoluted process with an unusual turn of events, the court’s decision that dismisses the suit is welcome news for those who believe the judicial system is the wrong place to handle claims of harm from global warming. The only venue left for the litigation is the U.S. Supreme Court, to which the plaintiffs will no doubt appeal.

Comer v. Murphy Oil was brought by Mississippi residents trying to hold 150 energy and industrial companies responsible for damages caused by Hurricane Katrina. Their theory is that the companies emitted greenhouse gases that cause global warming, which made Hurricane Katrina more destructive, therefore these companies – and only these companies — should pay up.

In August 2007, U.S. District Court Judge Louis Guirola, Jr., of the Southern District of Mississippi dismissed the lawsuit, ruling the plaintiffs lacked standing and the tort claims were non-justiciable ones that had to be resolved by the political system. (Opinion here, via Global Climate Law Blog.) The plaintiff’s appealed to the Fifth Circuit, and on Oct. 16, 2009, a three-judge panel ruled two-to-one that the lawsuit had indeed raised justiciable issues that should be heard at trial. (Opinion here.)

The defendants appealed for an en banc hearing by the full Fifth Circuit, which was granted. (The National Association of Manufacturers, American Farm Bureau Federation and American Tort Reform Association had joined in an amicus brief arguing for the hearing, as well.)

In an agreeing to the en banc consideration, the full Fifth Circuit vacated its three-member panel’s ruling on the Comer litigation, anticipating that it would hear the case and make its own ruling. That decision reinstated the district judge’s dismissal of the Comer suit. However — and this is the odd turn of events — right before briefs were due, the Fifth Circuit announced that an eighth judge had recused him or herself. The only reason stated was “new circumstances arose.” (Seven judges had already withdrawn; the usual reason for recusal is stock ownership.)

But the court had constituted itself correctly, and although the judges considered several options for further consideration, they decided that the previous action — dismissal — had to stand. From the Fifth Circuit’s order, filed today:

In sum, a court without a quorum cannot conduct judicial business. This court has no quorum. This court declares that because it has no quorum it cannot conduct judicial business with respect to this appeal. This court, lacking a quorum, certainly has no authority to disregard or to rewrite the established rules of this court. There is no rule that gives this court authority to reinstate the panel opinion, which has been vacated. Consequently, there is no opinion or judgment in this case upon which any mandate may issue. 5TH CIR. R. 41.3.

Because neither this en banc court, nor the panel, can conduct further judicial business in this appeal, the Clerk is directed to dismiss the appeal.

This is hardly the end of climate change litigation, unfortunately. Expect more appeals and suits from plaintiffs hoping to hit the jackpot and environmental activists trying to create a carbon-command-and-control economy through the courts.

But for now, a bad lawsuit has been dismissed. That’s good enough for today.

For more, see the NAM’s Manufacturing Law Center entry on Comer v. Murphy Oil. Earlier Shopfloor.org posts here.

Bloomberg, “Trade Deals Needed to Aid U.S. Exports, Farmers Say“:

May 3 (Bloomberg) — Congress should pass U.S. free-trade agreements with South Korea, Colombia and Panama to meet President Barack Obama’s goal of doubling exports in the next five years, a group of agricultural trade groups said.

Legislation to pass the agreements, which would boost U.S. agricultural exports by $2.5 billion, has stalled in Congress, Bob Stallman, the president of the American Farm Bureau Association, said today on a conference call with reporters from Washington. Without the agreements, the U.S. may lose market share in those three countries to competing exporters including Canada and the European Union, Stallman said.

More …

• The Farm Bureau’s release, “AFBF: Congress Should Stop Dragging its Feet on FTAs.”
• Dow-Jones, “Canada Minister Confident Of EU Trade Pact Before End 2011“
• AFP, “EU president wants closer Japan ties, freer trade“
• Indian Express, “India as needy of free-trade pact as us: EU ambassador“
• Ukrinform, “Ukraine, Turkey ready to intensify talks on drafting free trade area agreement”
• Bloomberg, “Brison Says Colombia-Canada Trade Pact May Spur U.S. Lawmakers“
• Focus Taiwan, “Trade pact with China to help Taiwan forge FTAs: minister“

UPDATE (3:53 p.m.): Talking Points Memo reports Democratic leadership saying the widely cited memo reported in Politico is a fraud. Politico has pulled the report until it can verify its accuracy.

______________________

This leadership memo instructs House Democratic communications staff how to handle questions and criticism of the CBO scoring of the health care bill.

(Via Hot Air)

In other health care developments, the American Farm Bureau Federation has sent a letter to House members stating the organization’s strong opposition to the health care legislation. From the Farm Bureau’s news release:

In a letter sent Thursday to all members of the House, AFBF President Bob Stallman said the legislation’s “negatives of new taxes, mandates, growth in government programs and overall cost far outweigh its benefits.” Stallman said Farm Bureau strongly favors health care reform, but it must be “workable, sustainable and balanced against the overall cost of doing business.”

Stallman told lawmakers that America’s agricultural producers are trapped in a broken insurance marketplace with few options and high insurance costs. “Farmers and ranchers need market-based reform that lowers costs and increases choices for private health insurance,” Stallman wrote.

UPDATE (3:20 p.m.): Retail Industry Leaders Association opposes health care legislation. John Emling, senior vice president, is quoted in RILA’s news release.

RILA has actively supported and constructively engaged in the effort to reform America’s health care system to reduce costs and expand retailers’ ability to tailor the plans they offer to the unique needs of their employees; this legislation does neither. RILA urges members of Congress to oppose this bill, and to start over on a bill that better addresses the needs of employers and individuals alike.

Dow-Jones covers the developments, “US Business Groups Opposing Health Bill As Vote Nears.”

Quin Hillyer of The Washington Times comments on the should-be-higher profile case of Comer v. Murphy Oil U.S.A., in a column, “No butterfly caused Katrina“:

A case called Comer v. Murphy Oil USA, winding its way through federal courts, offers leftists a perfect storm of fantasy fulfillment. Yet their fantasy balloons may well get popped. If the case is decided correctly, it could strike separate blows against both lawsuit abuse and global-warming alarmists, including those at the radicalized Environmental Protection Agency. …

This is the class-action lawsuit in which Mississippi residents sued  150 energy companies, chemical manufacturers and other emitters of greenhouse gases, claiming the emissions increased global warming, which made Hurricane Katrina so much more powerful and damaging to property. Compensate us!

Hillyer writes:

Remember the theory of the “butterfly effect,” whereby the flap of an insect’s wings in Brazil somehow could cause a tornado in Texas? In essence, the Comer theory amounts to sort of a butterfly effect writ extra-large. The problem with the butterfly effect is that a gazillion other creatures are flapping their wings all over the world, so it is literally impossible ever to prove a cause-and-effect relationship between airflows in Brazil and Texas or between Bolivia and Tennessee.

The trial judge, U.S. District Judge Louis Girola, Jr., dismissed the lawsuit because it sought to use the courts to balance complicated economic, environmental and international interests. These interests are constitutionally the domain of the political branches of government, not the courts. Unfortunately, a three-judge panel of the Fifth Circuit reversed, allowing the case to proceed. Now the full court will now consider the litigation en banc. Hillyer:

Remember, this first fight involves mere standing to sue, not the merits of the global-warming, butterfly-effect claims. But if it proceeds to trial, literally every one of us who uses energy could be legally liable for some degree of Katrina’s devastation. Energy-company shareholders, including retirees whose pension funds rely on stock in those companies, would see their savings diminished, while consumers surely would pay vastly higher prices if the millions of people who suffered damages in Katrina could lay claims for damages.

Hillyer cites an amicus brief filed in the litigation by the American Farm Bureau Federation, joined by the National Association of Manufacturers, the the American Tort Reform Association. The brief and case summary is available at the NAM’s Manufacturing Law Center’s entry on Comer, here.

Last October a three-member panel of the U.S. Court of Appeals for the Fifth Circuit ruled in Comer v. Murphy Oil USA [585 F. 3d 855 (5th Cir. 2009)] that private landowners along the Gulf Coast of Mississippi could use Mississippi state law to sue more than 150 energy and manufacturing companies for having contributed to global warming. The argument was that global warming made Hurricane Katrina more powerful, causing the damage to their property, and therefore the companies should pay up. (Opinion)

The panel’s opinion was a terrible example of a court deciding that the judiciary is the proper authority to rule on a matter of policy — how society should allocate economic resources in response to the possibility of anthropogenic global warming — that appropriately belongs with the elected, policy-making branch of government, Congress. Indeed, the trial court had dismissed the suit on the grounds it raised non-justiciable political questions.

Good news. In a little noticed decision last Friday, the Fifth Circuit vacated the panel’s ruling and ordered an en banc hearing of the case, that is, decided to bring the litigation before the full court of appeals. (The order is here.) En banc hearings are relatively rare, but the stakes in this case — and the extreme position taken by the panel — warrant the review.

The National Association of Manufacturers joined the American Farm Bureau Federation and the American Tort Reform Association in filing an amicus brief urging the en banc consideration. Excerpt:

The theories alleged by Plaintiffs would dramatically change tort law and negatively affect business and consumer practices far beyond the energy industry and the parties before the court. The practical application of these theories will burden trial judges with extraordinarily speculative litigation against American farms,manufacturers, and virtually all other businesses; arbitrary selection by plaintiffs’ counsel will be the touchstone for liability. The tenuous link between plaintiffs’ alleged harm and defendants’ alleged conduct is beyond anything ever recognized in American tort law. Causation issues will also create an impossible burden for judges and juries. Adjudicating such claims would require a fact-finder to balance the social utility and costs of an enormous range of industrial, agricultural, manufacturing and individual activities that are only remotely related (if at all) to the alleged harm in order to assess and to assign potential liability.

Further, complex regulatory matters should remain within the domain of the political branches, as the constitutional power to engage in the balancing of such economic, environmental and international interests is vested in them. Constitutional issues aside, only these branches of government can fully assess the impact of carbon emissions limits on the entire range of emitters, whether energy producers, farmers, or others not before the court. Those branches can also factor in the financial burden on consumers to afford the added costs associated with such restrictions to their utility, food and other bills.

Comer is one of three major cases where the courts are being asked to assign liability to U.S. companies for contributing to global warming and property damage. The others are Kivalina v. ExxonMobil, in which an Alaskan native village has sued oil companies for beach erosion, a suit since dismissed by a federal district judge; and Connecticut v. American Electronic Power, in which the Second Circuit has ruled that states may bring a federal public nuisance suit against electric utilities.

News, commentary:

• Associated Press, “Appeals Court to revisit Katrina lawsuit“
• Troutman Sanders, “Fifth Circuit Grants Rehearing En Banc in Comer Climate Change Tort Litigation“
• Gardere Wynne Sewell LLP news release “Climate Change Litigation Hits A Roadblock In Fifth Circuit Court Of Appeals“
• Insurance Journal, “Global Warming Litigation Just Getting Started; Costs Will Be Significant“

The American Farm Bureau Federation has urged House members to vote against H.R. 2454, the Waxman-Markey cap-and-control, command-and-trade bill.

An AFBF economic analysis shows that at a minimum, net farm income will decline by $5 billion annually by the year 2020, if H.R. 2454 is passed.

“The $5 billion impact is under the most optimistic set of assumptions,” [AFBF President Bob] Stallman said. “Those estimates do not begin to tell the story of what will happen when the program mandated by this legislation fully takes hold.”

AFBF is concerned because the bill would result in a net economic cost to farmers with little or no environmental benefit. In addition, it creates an “energy deficit” for the United States by curtailing the use of fossil fuels without supplying any realistic alternative to make up the lost energy. Also, it does nothing to require other countries, such as China and India, to undertake similar programs.

From Investor’s Business Daily, “Pelosi And Obama May Lack Support For Cap And Trade“:

Despite heavy lobbying, Rep. Earl Pomeroy, D-N.D., said Thursday he would buck his leadership.

“Pomeroy has several concerns with the effect the Waxman-Markey bill, as currently drafted, would have on North Dakota, and plans to vote no,” spokeswoman Sandra Salstrom told IBD.

Cap-and-trade fans hoped to win over Rep. Artur Davis, D-Ala. He dashed those hopes Thursday.

“While there have been serious and genuine efforts that have made this bill better, the fact remains that in Alabama, the bill will almost certainly cost us jobs and raise our utility rates,” Davis said in a statement.

Actually, Davis’ district is both rural and urban, and Pomeroy is the at-large House member from North Dakota. But both recognize the impact of a cap-and-trade regime on agricultural production, and certainly in Pomeroy’s case, his state’s energy sector.

Davis is also running for governor of Alabama, so he surely assesses a vote for Waxman-Markey as a political killer.

From Reuters, “Business Groups tell Lamy need more for Doha“:

WASHINGTON (Reuters) – Leading U.S. business groups told World Trade Organization Director General Pascal Lamy on Tuesday they can not support current proposals for finishing seven years of talks on a global trade deal.

“We stressed repeatedly that our three organizations want this to work. We’re not throwing up roadblocks,” said Frank Vargo, vice president for international economic affairs at the National Association of Manufacturers.

“But what we want is for it to produce results (by increasing trade). We’re the organizations that are going to have to get this through Congress,” Vargo told reporters.

Lamy met with leaders from the manufacturers groups, the American Farm Bureau Federation and the Coalition of Service Industries near the end of two days of meetings with members of Congress and Obama administration officials.

NAM President John Engler, Bob Stallman of the AFBF and Bob Vastine of the services group sent a joint leter to President Obama last month providing more detail on the steps and substance necessary to revive the Doha negotiations and anticipating next month’s meeting of the G-20. Key excerpt:

[In] order to realize some tangible benefits from the efforts to date, we recommend that your Administration consider alternative paths forward, including whether some parts of the Round should be considered for a separate agreement in the near-term, rather than waiting for an overall conclusion. In particular, the ongoing trade facilitation negotiations enjoy broad support by developed and developing countries – including the least developed countries. A trade facilitation and capacity building deal in the near-term could bring much needed benefits to all nations if rapidly implemented on a separate track. Industrial non-tariff barrier negotiations have also languished and need renewed emphasis.

Trade has been a crucial component of U.S. and global economic growth, and will be central to the recovery of both. U.S. leadership is essential to bringing the Round to a successful conclusion, and the United States must continue to press for the ambitious outcome that would create new trade flows that will stimulate growth. Similarly, at the April G-20 meeting in London the United States must take a strong position against the global slide toward protectionism.