Climate Preemption, the Supreme Court, and the 2008 Election

Leslie Carothers of the Environmental Law Institute has an extremely important op-ed in today's Christian Science Monitor on the need to consider judicial philosophies about global warming in the context of the presidential election. Carothers, echoing a point that Joe Romm and others have made before, argues persuasively that a stated commitment to deal with the climate crisis-- particulary as it applies to Senator McCain-- simply cannot square with a continuation of the dangerous, opportunistic legal logic that has emanated from the Bush administration and the kind of judicial nominees it favors:

[The administration and its supporters] argue that, precisely because climate change is a global problem with enormous consequences, federal courts are constitutionally barred from addressing it – even where Congress has expressly authorized legal remedies.

If such tortured judicial logic commanded a majority, it would threaten to undermine whatever global-warming solutions the legislative and executive branches might produce. Judges who abdicate their duty to oversee the new law's implementation could bring it to a halt. And this hands-off view lacks only a fifth vote to hold sway over the Supreme Court...

Historically, environmental law has followed a two-step pattern: A looming crisis results in legislation and regulation, which in turn get interpreted and refined through litigation. Right now, all eyes are on the EPA as it obstructs Step 1, but that problem can be remedied by congressional action and a change in the White House. The Bush administration's enduring legacy is the judiciary that will preside over Step 2 – litigation. The next president's decision to continue or reverse that legacy could have a real impact on global warming.

Carothers' future-oriented argument becomes even more urgent looking at the ongoing legal showdown over California's efforts to step in where the federal government has failed to act. On the surface, the Bush EPA's shameful and unprecedented decision to block state action seems doomed, part of Carothers' Step 1-- even if the waiver denial isn't reversed by the courts or Congress by January 2009, the next President seemingly would. But as law professor Jeffrey Rosen observes in his chronicle of the Bush administration's legal foibles relating to global warming, slated for the upcoming environment issue of The New Republic, the battle over clean cars actually seems destined to continue:

If the next administration grants the waiver that Bush denied and allows California's emissions standards to go into effect--as both Hillary Clinton and Barack Obama have promised to do (and as even John McCain at one point endorsed)--big business conservatives will turn once more to the Supreme Court to reverse their political defeat. They will argue that California's authority to adopt more liberal global-warming emissions rules under the Clean Air Act is "preempted" by another federal law establishing national emission standards. A federal judge in Vermont recently rejected this adventurous argument, and the case against it would be even stronger if it were opposed by [the White House]...

The most likely vehicle for such a showdown, as this blog has observed previously, is the still-ongoing Second Circuit appeal of the Vermont decision. And the looming potential role of White House involvement applies to the current administration as well, with the Department of Justice having until April 16 (next Wednesday) to follow up on its moving to file a friend-of-the-court brief on behalf of the auto industry. Reversing that position, like support for California's emissions standards, should at the very least be low-hanging fruit for the next President.

We'll have more soon on the preemption case that industry lawyers, led by noted Supreme Court litigator Kathleen Sullivan, have sketched out in their opening brief. It's much more refined and focused than what the industry offerred in the lower court, and it hones in on the Supreme Court's (extremely troubling) recent preemption decisions to make its sweeping case against much-needed state innovation. And it certainly highlights the need to hold candidates accountable for more than their stated intentions on climate change, and grill them on the kind of people they would appoint to make critical legal decisions.

Comments

[Shannon]

Hey on an unrelated note, MD did not vote on the Global Warming Solutions Act before the legislature let out for the season yesterday. I have a brief blurb up at http://local-warming.blogspot.com/2008/04/md-leg-session-ends-without-global.html. Thought you might want to know.

[Jonathan H. Adler]

C'mon guys. You should know better than to promote that Rosen piece. Unlike much of his work, that one is just riddled with errors and misrepresentations (even if it does cite CRC's Doug Kendall). I shred Rosen's shoddy effort to write on environmental law here:
http://volokh.com/posts/1207794605.shtml

JHA

[Tim Dowling, CRC]

Jonathan – Several of the points in your Volokh Conspiracy post are well-taken, but in your zeal to “shred” Rosen (as you call it), you stumble into errors and misrepresentations on your own.

For example, in discussing American Trucking Ass’ns v. EPA, you describe the non-delegation analysis as being set forth “in a portion of the opinion written by Judge Stephen Williams (not Judge Douglas Ginsburg as Rosen claims -- presumably in order to insert a gratuitous reference to ‘Constitution in Exile’).”

But Rosen didn’t claim that Judge Ginsburg wrote this portion of the opinion, only that he embraced the argument, which he assuredly did notwithstanding the authorship of this portion by Judge Williams. Different sections of the majority opinion were written by each of the three judges on the panel, but it was issued “per curiam”, in other words, for the court, which makes clear all three agreed with the opinion. The only exception is that Judge Tatel, in addition to writing his portion of the majority opinion, also wrote a separate dissent expressly disagreeing with the non-delegation discussion in Part I. To suggest as you do that Judge Ginsburg did not endorse the non-delegation discussion is to ignore the very meaning of “per curiam,” no? A unanimous Supreme Court certainly saw it that way, describing the non-delegation discussion as a holding of the court (with Judge Tatel dissenting), not simply the individual views of Judge Williams.

In the grand scheme of things, this might seem like a minor discrepancy, but it’s actually a fairly significant point in your post, since you are accusing Rosen of misrepresenting the facts in order to make a “gratuitous” dig against Judge Ginsburg, when in fact the D.C. Circuit’s opinion reflects acceptance of the non-delegation argument by both Judges Ginsburg and Williams, an argument that certainly is part of the so-called Constitution in Exile as it was described by Judge Ginsburg.

Perhaps when the left and right are done “shredding” each other, we all can return to a more careful analysis of the law.

[Jonathan H. Adler]

Tim --

If my parenthetical comment about Ginsburg is the only thing you found objectionable in my critique of Rosen, I don't think that says much for his original piece.

JHA

[Tim Dowling]

No, it’s not the only thing I found objectionable in your post. It’s a representative example. Another would be your dig at Doug Kendall, which is not supported by the quote he provided to Jeff Rosen. But as I said in my first comment, I did find several of your points well-taken. It’s unfortunate when those on the left or the right or in the middle become convinced they have a monopoly on truth and virtue. Believe me, I am not immune to this way of thinking either, but we should all try to resist it.