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Forty Years Later, Celebrating the Clean Air Act

By | Briefly Legal, General, Global Warming, Regulations | No Comments

From the Environmental Protection Agency, a news release, “EPA Marks the Clean Air Act’s 40th Anniversary/ Landmark law saves lives and provides billions of dollars in benefits“:

WASHINGTON – On Tuesday, Sept. 14, U.S. Environmental Protection Agency Administrator Lisa P. Jackson will deliver the keynote address at a conference marking the 40th anniversary of the Clean Air Act. The conference will bring together leading contributors who have helped shape the act over the past 40 years, including members of Congress, state and local government officials, and leaders in public health, business and technology, environmental justice, and advocacy.

The daylong event (agenda) features speakers who were around in the early days of the law, including the EPA’s first administrator, Bill Ruckelshaus.

Question to pose to all the participants: When Congress passed the Clean Air Act, do you believe it intended to use the law to control carbon dioxide emissions?

Or put another way: Isn’t the EPA creating law when it unilaterally amends the emissions limits established by the Clean Air Act to apply only to industrial sources for greenhouse gases, carbon dioxide included?

Meanwhile, mixing messages this week, President Obama campaigns for Richard Blumenthal, the Democratic attorney general of Connecticut who’s running for U.S. Senate. Blumenthal orchestrated the egregious multistate suit against electric utilities, Connecticut v. American Electric Power, claiming power plant emissions created a federal public nuisance. The Second Circuit found for the states, and the utilities are asking the U.S. Supreme Court to hear an appeal.

In August, the Solicitor General’s Office filed a brief stating the Obama Administration’s opposition to the Blumenthal-originated litigation and urging the Supreme Court to grant review. (See Jonathan Adler at the Volok Conspiracy, “The SG’s Brief in American Electric Power v. Connecticut.”) From the brief:

[This] Court should grant certiorari, vacate the judgments of the court of appeals, and remand to enable the court of appeals to consider two questions in the first instance: (1) whether, independent of Article III standing requirements, plaintiffs’ suits should be barred as a matter of prudential standing; and (2) whether, in light of multiple actions that EPA has taken since the court of appeals issued its decision, any otherwise cognizable federal common-law claims here have been displaced.

So what’s the campaign message from the President? “As attorney general, Blumenthal already thinks he’s a legislator, so let’s legitimize him by electing him to the Senate. Yea!”

The National Association of Manufacturers and other business groups filed an amicus brief in the Supreme Court on Sept. 1 urging that court to review the case. We argued that only the political branches of government are equipped to resolve the complex and dynamic issues relating to climate change regulation, that the plaintiffs’ legal claims exceed the boundaries of public nuisance litigation, and that judges and juries are not empowered or competent to exercise extraordinary regulatory powers without clear boundaries and guiding principles. The brief is available here.

But Did You Go to Harvard Law?

By | Briefly Legal | No Comments

The speculation machine is running full-time here in Washington, as the philosophically and pecuniarily interested consider who might be appointed to what. We joined in the gizzard gazing, starting with this Politico article, over whom a President Obama might name his attorney general and detected a theme. 

  • Arizona Governor Janet Napolitano (University of Virginia Law School)
  • Jamie Gorelick, former Clinton-era Justice Department official, 9/11 Commission member. (Harvard Law School)
  • Eric Holder, former Clinton-era Justice Department. (Columbia Law School)
  • Massachusetts Governor Deval Patrick (Harvard Law School )
  • Virginia Governor Tim Kaine (Harvard Law School)
  • James Comey, former deputy attorney general and Lockheed Martin general counsel, as reported in the Chicago Tribune. (University of Chicago Law)
  • U.S. Attorney Patrick Fitzgerald, Chicago. (Harvard Law School, ’85)
  • Rep. Artur Davis, as reported by Marc Ambinder, The Atlantic. (Cum laude Harvard Law School)
  • Charles Ogletree (Harvard Law, ’78, and Harvard Law School professor.)

Legal Times reports on Obama’s transition team for the Justice Department, headed by the very impressive David Ogden of Wilmer Cutler Pickering Hale and Dorr.

Harvard Law, ’81, and editor of the Harvard Law Review. Of course!

(We note the professional expertise and familiarity with the manufacturing sector of Mr. Comey, the only name that fell outside the category of “usual suspects” — that term being only politically descriptive, not pejorative.)