Initial reaction to yesterday's ruling by the 9th Circuit continues, and there's a growing sense that the court's sweeping ruling plays into a broader trend in environmental jurisprudence this year. First, from the NY Times:
Lawyers specializing in environmental issues said the decision had implications beyond the automobile industry’s struggles over fuel-economy standards. It was the third major federal court ruling in seven months pressing federal and state regulators to take the risk of climate change into consideration as they regulate industries that emit carbon dioxide and other heat-trapping gases produced when oil, coal and natural gas are burned to produce energy.
“What this says to me is that the courts are catching up with climate change and the law is catching up with climate change,” said Patrick Parenteau, an environmental law professor at Vermont Law School. “Climate change has ushered in a whole new era of judicial review.”
In each case, starting with the Supreme Court’s 5-to-4 ruling early this year that the Environmental Protection Agency can regulate heat-trapping emissions, courts have found that federal officials must either grapple with the consequences of climate change or explain why they chose not to.
To insert our own analogy here-- lifted indirectly from James Gammon's clubhouse speech to the fictitious, moribund Cleveland Indians midway through the movie "Major League II"-- this is a lot like our national pastime. When you win a big game, that's a victory (and legally speaking, a source of uplift and some precedent). Another one makes 'two in a row.' Next thing you know, you've got a winning streak, with all the added momentum and legal applications it hopefully represents.
To be clear, this isn't decisive by any means in the grander scope of things, and other factors-- such as states' attempts to enact stricter auto emissions standards, and the current congressional debate over CAFE standards-- matter a lot in terms of the final won-loss record. But this one's important nevertheless. And it's not just legal experts who are noting the trend:
Tom O'Dell, an auto analyst with Edmunds, called the ruling a "huge victory for the environmental groups" and the 11 states and cities but pointed out that it probably will have no immediate impact on auto buyers.
Nevertheless, it is "another one of the federal courts saying, 'Hey, greenhouse gas is something that needs to be considered as we're dealing with the auto industry and emissions and mileage,' " O'Dell said. "It's a decision that's going to bounce around a bit and have a lot of impact."
Also worth noting in this light: Judge Fletcher's opinon leans directly on Massachusetts v. EPA quite a bit. In addition to the citation we discussed last night regarding NHTSA's cost-benefits analysis, she cites the case on four separate occasions while invalidating the agency's consideration of environmental impacts, concluding that "the impact of greenhouse gas emissions on climate change is precisely the kind of cumulative analysis that NEPA requires agencies to conduct." We're hoping to have more analysis on the NEPA aspect of the ruling quite soon...