Few Democratic members of Congress have spoken up on the National Labor Relations Board’s unprecedented and extreme complaint against The Boeing Company for making a reasonable, legitimate management decision by building new production facilities in South Carolina. It’s a tough decision to defend, so those commenting have relied on a “process” argument — let the process work.

Senate Majority Leader Harry Reid hailed the NLRB as an example of the “checks and balances” envisioned by the Founding Fathers. Sen. Tom Harkin (D-IA) levied accusations, claiming, “Powerful corporate interests are pressuring Members of this body to interfere with an independent agency rather than letting it run its course.”

On Thursday, it was Sen. Richard Blumenthal’s turn to come to the Senate floor to defend the NLRB. The Connecticut Democrat made the most coherent, seriously framed argument based on process we’ve seen: “The NLRB and Lafe Solomon, the acting general counsel, have not only the right but the responsibility to investigate and act where the facts and the law establish a right and obligation to do so. So no one should be trying to prejudge this case before it goes before the administrative judge, and no one should be seeking a pass from the appropriate process, and no one should be seeking to intimidate or to interfere with this lawful proceeding. I come to the floor today because of the prospect of exactly that danger  occurring.”

Yet one specific example Blumenthal cites is the decision by Chairman Darrel Issa (R-CA) of the House Oversight Committee to request documents on the Boeing complaint from the NLRB. But that’s the only example. Otherwise, the Senator seems to objecting to other elected officials publicly criticizing a federal agency.

These actions and some others are an attack on the integrity of the NLRB, an attack on its ability to make decisions and enforce the law as the Congress has instructed it and required it to do based on decisions involving the facts and the law alone. The NLRB is part of our justice system, and it should be given the opportunity to do justice in this instance. It should be given the opportunity to protect fairness and peace at the workplace, which is ultimately its mandate and its very solemn responsibility, and its tradition.

The NLRB is part of our justice system? Really? It does not behave that way. You have the NLRB’s public affairs office issuing press releases announcing the agency’s rulings against business and posting “Fact Checks” that are just political spin. Lafe Solomon commented publicly on the case, restating Boeing’s supposed offenses, before he retreated behind the protection of “let the process work.”

The agency is behaving as a political actor, and the complaint against Boeing is so at odds with the board’s mandate, solemn responsibility and tradition — to use Blumenthal’s terms — that silence would be an abdication of Congress’ oversight and policymaking responsibilities. If the NLRB’s complaint stands, the federal government will replace management in determining company locations and hiring. Such a radical restructuring of the U.S. economy and such an extreme expansion of federal power is at heart a policy matter, which in our system of government is the purview of Congress.

When an agency runs amok like the NLRB has done, it has abandoned process. That’s why the process arguments made by its defenders are just beside the point.

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…)

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.

• Washington Post, “Supreme Court skeptical of allowing global-warming case to move forward“
• New York Times, “Justices Skeptical on Role of Courts in Setting Emissions Standards“
• Wall Street Journal (blog), “High Court Voices Skepticism Over States’ Global Warming Suits“
• MarketWatch, “Justices Skeptical in Emissions Case“

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.

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.

• National Association of Manufacturers Manufacturing Law Center case summary.
• National Association of Manufacturers amicus brief. Counsel of record is Richard O. Faulk of Gardere Wynne Sewell LLP.
• American Tort Reform Association, “ATRA Brief Urges Supreme Court to Dismiss Global-Warming as Public-Nuisance Case”
• Washington Legal Foundation, Legal Backgrounder, “AEP v. Connecticut: Will The Supreme Court Make Defendants Do “Their Share” To Mitigate Global Climate Change?”
• Natural Resources Defense Council, “The Sky Will Not Fall: Why the Supreme Court Should Let States Sue the …”
• National Journal, “The fight over climate-change policy may move to the judicial branch.” (May?)
• Bloomberg, “White House Joins AEP to Fight Climate Lawsuits With EPA ‘Off its Duff’”
• Journal and Courier (Indiana), “Court to decide whether states can sue utilities over greenhouse gases”
• Detroit News (editorial), “Editorial: Supreme Court should reject global warming case”
• Daily Caller, “Supreme Court to hear major climate change case”

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…)

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.

The fundraiser for Senate Democratic candidates at the American Association for Justice convention in Vancouver, B.C., continues to make news, despite the trial lawyers’ efforts to keep it out of the press. Senate Majority Leader Harry Reid was in attendance.

Goodness knows, we don’t have a beef with political fundraising: Our recurring complaint is that the AAJ is one of the most powerful lobbying and political groups in the country, and yet the trial lawyers association does not receive the same level of scrutiny from the maintream media that business groups do.

• The Day, Hartford, Conn., “Blumenthal was at Reid’s Vancouver fundraiser, campaign confirms“
• The Hill (blog), “GOP hits Reid and others for raising money in Canada“
• Politico, “SUNDAY NIGHT — DO YOU KNOW WHERE YOUR SENATOR WAS?”
• WRTV-6, Indianapolis, “Ellsworth takes campaign on the road… to Canada“

Now if we could just get people to report on the AAJ’s role in shaping policy.