Tag: Global Warming

The NAM Challenges EPA’s Endangerment Finding

Late Friday, the National Association of Manufacturers and a number of other parties filed a legal brief challenging the Environmental Protection Agency’s finding that greenhouse gases threaten public health (the so-called endangerment finding).

The NAM’s Vice President for Litigation Quentin Riegel talks about the case below:

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Administration Concedes Global Warming is a Policy Question

Writing at the Cato Institute’s blog, Cato@Liberty, Walter Olson gives us a single paragraph that captures why the Supreme Court should reject the Second Circuit’s ruling that Connecticut and other states could sue five electric utilities for contributing to global warming. From “AEP v. Connecticut: Global Warming as Political Question”:

By its nature, global warming is exactly the sort of policy question traditionally entrusted to the political branches: it is wholly unsuited to individualized justice based on links between particularized emissions and particularized effects, its proposed remedies are much disputed and likely to be the result of inevitably arbitrary compromise, sovereign negotiations with foreign actors play a crucial role, and so forth. As the courts have long recognized, one does not generate a case for judicial action simply by piling atop each other the propositions “something needs to be done” and “the political branches have not done it.” Indeed, the Obama administration itself has more or less invited the Supreme Court to dismiss the action on political-question grounds.

The media coverage of Tuesday’s oral arguments we read highlighted the Administration’s argument that the need for the public nuisance suit by the states and environmental groups had been obviated by the Environmental Protection Agency’s regulation of greenhouse gases. As Greenwire framed it: “[The] Obama administration maintains that U.S. EPA, through its recent efforts to regulate greenhouse gas emissions, has “spoken directly to the question plaintiffs ask the courts to resolve.” (continue reading…)

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Skeptical. Supreme Court was Skeptical on Greenhouse Gas Suit

The Supreme Court heard oral arguments Tuesday in American Electric Power v. Connecticut, the appeal from the Second Circuit’s far-fetched ruling that states can sue electric utilities as a public nuisance for contributing to global warming through greenhouse gas emissions. It appears the court was … skeptical.

Well, of course the court was skeptical. “Aghast” or “driven to distraction” would have been beyond the norms of judicial temperament.

But the arguments the justices heard Tuesday in support of Second Circuit’s ruling were enough to warrant strong sentiments. The appellate court ruled that it was OK for states to sue the five electric utilities for creating a public nuisance under federal common law because of their power plants emit carbon dioxide. You know what else produces carbon dioxide? Power plants, and factories, and animals and people all over the world, and the Second Circuit believe it was OK for the U.S. judicial system to be arbiter of the science, politics, regulation and wealth distribution potentially involved with that reality.

Quentin Riegel, the NAM’s vice president for litigation, previewed the case in an interview on CBS Radio. As he explained: “If the courts get involved in the business of setting national energy policy, then virtually any business could face a lawsuit. Courts are not the right place to be coming up with those policies. That’s the role of the legislative and executive branches.”

For more, see the Scotusblog report, the National Association of Manufacturers Manufacturing Law Center case summary and the NAM’s amicus brief.

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Will the Courts Set Economic Policy? AEP v. Connecticut Preview

The U.S. Supreme Court this morning hears oral arguments in American Electric Power v. Connecticut, an appeal from the Second Circuit ruling that held five utilities could be sued for creating a public nuisance under federal common law because they had emitted greenhouse gases that contribute to global warming. Boiled down, the issue is: Should the courts have the ability to raise your electric rates. (This paragraph updated at 1:50 p.m. to more accurately characterize Appellate Court’s ruling.)

From the Scotusblog, “Argument preview: The courts and global warming”:

The Supreme Court will hold eighty minutes of oral argument at 10 a.m. Tuesday on a major challenge to the use of the judiciary to impose controls on “greenhouse gas” emissions that may contribute to climate change, such as global warming.  In American Electric Power Co., et al., v. Connecticut, et al. (10-174), the argument for the electric utilities facing “public nuisance” lawsuits will be made by Peter D. Keisler of the Washington, D.C., office of Sidley Austin.  Arguing for the federal government in support of the utilities will be Acting U.S. Solicitor General Neal K. Katyal, and for a group of states will be New York’s state Solicitor General, Barbara D. Underwood.  The time for argument has been expanded from the usual 60 minutes to 80; the utilities and the government will have 20 minutes each, and the states 40.

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What’s This About ‘Environmental Justice,’ Secretary Napolitano?

Secretary of Homeland Security Janet Napolitano testifies Thursday before the Senate Homeland Security and Government Affairs Committee on her agency’s Fiscal Year 2012 budget request. Perhaps a committee member might inquire about her remarks last December at a White House forum on “environmental justice,” in which Secretary Napolitano declared the infinitely malleable principles to be a guide for her agency.

She said:

Changes in climate really translate into huge environmental changes that have impacts on communities and also on national security, because they raise not only the issues of making sure that we are taking into account and caring for the most at-risk populations, but that we are also looking at and planning for the potentiality of mass migrations, demographic changes, patterns, concentrations of economic assets, population growth in different areas, deteriorating infrastructure. All of this gets knit together under this umbrella of climate change and environmental adaptation.

The 11-page budget summary makes no mention of spending on “environmental justice” programs, and indeed, we found no use of the term at all in the entire FY2012 budget document from OMB.

Still, it might be productive to delve into her view of the agency’s responsibilities with respect to global warming, “environmental justice,” demographic change and “at-risk populations.” A good question could be: Shouldn’t homeland security be your only priority?

Two Shopfloor blog posts from Dec. 18, 2010:
At the Environmental Justice Forum: Give Us Lawyers!
Environmental Justice Leaders Speak at White House Forum

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Manufacturers Join Brief Against Court Control of Greenhouse Gas Emissions

The National Association of Manufacturers today joined an amicus brief urging the U.S. Supreme Court to overturn an extreme ruling by the Second U.S. Court of Appeals that allows eight states to sue six major electric utility companies under the theory that their emissions caused a public nuisance by contributing to global warming. Through its decision, the appellate court effectively makes the federal judicial system the arbiter of what is fundamentally a political issue — environmental, energy and economic policy — that must be resolved by the policymaking branch of government, Congress.

The NAM has been involved in this litigation for several years. Background is available at the NAM’s Manufacturing Law Center.

The NAM’s brief in American Electric Power v. Connecticut was prepared and submitted by the Houston law firm of Gardere Wynne Sewell LLP. From the firm’s news release:

Feb 08, 2011 – HOUSTON – Houston environmental lawyer Richard O. Faulk, Chair of the Litigation Department at Gardere Wynne Sewell LLP, and John S. Gray, a Houston Partner in the firm’s Environmental Practice Group, have filed a brief with the U.S. Supreme Court on the merits of the highly controversial case of American Electric Power Company, Inc. v. Connecticut currently before the Court.

In a decision supported by an earlier brief filed by Gardere, the High Court agreed in December to review a ruling by a lower federal court that allowed public authorities and interest groups to sue power companies for causing global warming. Allegedly, the emission of “greenhouse gases” by the companies was a “public nuisance” that should be controlled by court orders issued by individual federal courts around the country – not EPA regulations or Congressional statutes.

In accepting the power companies’ appeal, the Supreme Court agreed to decide whether global warming was a “political question” that courts lacked the standards and resources to decide. (continue reading…)

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Carbon Dioxide is Not a Pollutant

No matter what the U.S. Supreme Court, the EPA and members of Congress say.

The Washington Post story today, “House GOP readies bill to prohibit EPA from regulating carbon emissions,” quotes the reaction of Rep. Earl Blumenaur (D-OR) to the introduction of the bill: ”I am outraged that House Republicans are launching this attack on the most basic law that keeps our air safe to breathe.”

Regulation of carbon dioxide has nothing to do with keeping ”our air safe to breathe.” It has to do with the claims of CO2 contributing to anthropogenic global warming.  If you’re going to make the case, make the case.

We had to laugh at the rhetoric, too. Back when we edited an editorial page in Oregon, there were two basic types of letters to the editor. One started with, “I am outraged,” and the other with, “I am appalled.”

Here’s the news release that inflames passions so: “Upton, Whitfield, Inhofe Unveil Energy Tax Prevention Act to Protect America’s Jobs & Families“:

Reps. Upton and Whitfield and Sen. Inhofe are releasing the draft as part of a deliberative process with their colleagues on both sides of the aisle to discuss the most effective approach to stop EPA’s cap and trade agenda. The draft legislation is based on the belief that 1) Congress, not EPA bureaucrats, should be in charge of setting America’s climate change policy; and that 2) A 2-year delay of EPA’s cap-and-trade agenda provides no meaningful certainty for job creators, fails to protect jobs, and punts decision-making in Congress on a critically important economic issue past the voters and the election next year.

“The Energy Tax Prevention Act of 2011” would:

•Stop EPA bureaucrats from making legislative decisions that should be made by Congress;
•Clarify that the Clean Air Act was not written by Congress to address climate change;
•Stop EPA bureaucrats from imposing a backdoor cap-and-trade tax that would make gasoline, electricity, fertilizer, and groceries more expensive for consumers; and
•Protect American jobs and manufacturers from overreaching EPA regulations that hinder our ability to compete with China and other countries.

The Energy and Power Subcommittee will hold a hearing on the draft legislation at 10 a.m. next Wednesday, Feb. 9.

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U.S. Supreme Court Will Not Hear Bogus Global Warming Case

The U.S. Supreme Court today denied the petition for mandamus filed by plaintiffs in one of the major — and preposterous — suits claiming damages against industry for causing global warming, Comer v. Murphy Oil. (Today’s order list is here.) This should be the end of the case because the plaintiffs did not file a petition for certiorari, but given how convoluted the lawsuit’s path through the courts has been, perhaps there’s a strange maneuver that could revive it.

As we have summarized at Shopfloor.org, a District Court Judge in Mississippi held that Mississippi residents could NOT sue power companies and refineries for damages that resulted from global warming, but a three-judge panel of the Fifth Circuit Court of Appeals ruled otherwise on appeal.

That decision was appealed to the full Fifth Circuit Court of Appeals for en banc consideration, but after accepting the case, another judge recused herself because of a conflict of interest, eliminating the court’s quorum to hear the appeal. However, the appellate court had already vacated the lower court’s decision in anticipation of hearing it, so the lawsuit basically died. The petition for mandamus was an effort to keep the litigation going.

The National Association of Manufacturers’ Manufacturing Law Center summarized the case here. In amicus briefs, we argued:

The plaintiffs, Mississippi residents and property owners, alleged that the emissions from more than 150 energy and manufacturing companies increased global warming and contributed to the severity of damages resulting from Hurricane Katrina. Our brief in support of the appeal argued that the plaintiffs’ theory of liability would dramatically expand tort law beyond anything ever recognized because of the tenuous link between the alleged conduct and the alleged harm. In addition, this case involves a complex regulatory matter requiring the balancing of economic, environmental and international interests, and is constitutionally the domain of the political branches of government, not the courts.

The U.S. Supreme Court will still have an opportunity to rule on the legitimacy of public nuisance claims against power companies for the alleged harm caused by supposed global warming. In December, the Supreme Court granted certiorari in American Electric Power v. Connecticut, the federal common law nuisance case brought by several northeastern states against power utilities for global warming. The NAM’s case summary is here.

[Update: I quickly corrected the original version that got the U.S. District Court judge's ruling wrong. District Court Judge Louis Guirola, Jr., of the Southern District of Mississippi dismissed the lawsuit in August 2007, ruling that the plaintiffs lacked standing and the tort claims were non-justiciable ones to be resolved by the political system. ]

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What a Super Climate! The Benefits of Global Warming

The photo below is the cover of the Nov. 29, 2010, edition of Focus, one of the three major German news weeklies. (Focus — not as turgid and politically tendentious as Der Spiegel, not salacious like Stern.)

The headline, “Prima Klima!” takes advantage of the rhyme in German (PREE-muh, KLEE-muh). The sub-title on the cover is, “Rethinking It: Global warming is good for us.”

In the magazine itself, the story’s headline is “It’s getting warmer — Good!

So which U.S. publication is willing to examine the same issues, report the same facts and challenge the same preconceptions and matters of faith?

In a video promoting the magazine, author Christian Pantle describes the piece. Our translation:

The climate summit is taking place this week in Cancun, where countries will again wrestle with how best to fight global warming. We approach the question this way: Is global warming really terrible? Does it really have only disadvantages? Does it really have only catastrophic consequences? Because until now, it’s always been maintained that any change is always change for the worse, when really a change can have good and bad sides, which can also produce positive results.

No one has really looked into this. It’s a quite a remarkable taboo in Germany.
(continue reading…)

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Ad Hoc Lawsuits No Way to Address Climate Issues

As noted below, the National Association of Manufactures and other business groups filed an an amicus briefing urging the U.S. Supreme Court to review a challenge by electric utilities’ to the Second Circuit Court of Appeals’ ruling in the key global warming case, Connecticut v. American Electric Power. The Supreme Court today granted that review.

The NAM’s friend-of-the-court brief (available here) was prepared by Gardere Wynne Sewell LLP in Texas. The firm issued a news release today in response to the Supreme Court’s announcement, “Gardere’s Faulk Praises U.S. Supreme Court for Agreeing to Hear AEP v. Connecticut Appeal“:

HOUSTON — The U.S. Supreme Court today agreed to hear an appeal in American Electric Power v. Connecticut, in which public authorities claim that public utilities’ greenhouse gas emissions contributed to climate change. Power companies argue that the universal issues of climate change cannot be solved by ad hoc lawsuits, but rather should be resolved by the political branches of government. 

Richard O. Faulk, chair of the Litigation Department of Gardere Wynne Sewell LLP in Texas, and Gardere partner John S. Gray, who recently filed a brief before the court in on behalf of several industry associations supporting the utilities’ arguments, praised the High Court for acting decisively in deciding to review the issue of whether private tort claims based on global warming are legitimate.

Mr. Faulk says the Supreme Court’s decision to hear the case is a “positive development that may foreshadow the demise of mass tort litigation based on global warming.  The use of isolated and ad hoc lawsuits against an arbitrarily selected group of emitters cannot possibly solve the global warming phenomenon.  The issue is best left to the international community, the Congress and the EPA, which have the resources and power to deal with this alleged problem. Hopefully, the Supreme Court will now recognize the primacy of those institutions.”

The NAM’s co-amici are the American Chemistry Council, American Coatings Association, National Petrochemical and Refiners Association, Property Casualty Insurers Association of America and the Public Nuisance Fairness Coalition.

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