Warming Law

Seattle's Supersonic Smart Growth

Last month, Warming Law reported that a proposal coming before Seattle's City Council would be the first in the nation to flatly require new development efforts to account for global warming impacts (as opposed to growing efforts to utilize existing law, such as what Tim wrote about earlier today). Earlier this week, that legislation was passed unanimously and with lots of rightful enthusiasm, though the issue hasn't been completely resolved:

Seattle is poised to become one of the first cities to require large construction projects -- whether condos or freeways -- to account for their greenhouse gas emissions.

But legislation passed Monday doesn't resolve a thornier question: how local governments want builders to curb gases that contribute to global warming.

Those choices could include requiring buildings to be more energy-efficient, charging fees for projects with large carbon footprints or possibly even rejecting permits.

The City Council, in a unanimous vote Monday, took a first step toward regulation. In March, city departments will start evaluating greenhouse gas emissions -- from the energy used to make concrete to pollution from cars that a building's residents drive -- when reviewing proposed projects.

"It's useful because departments aren't currently doing this," environmental attorney David Bricklin told the council last week. "But you're only scratching the surface with this, and you can't go home and think 'We've dealt with the issue now.' "

Seattle's vote follows a string of court rulings -- including one by the U.S. Supreme Court -- that classify greenhouse gases as pollutants that can be regulated.

Whither Dingell? Whither Preemption?

Above the fold in today's Business section, Washington Post reporters Jeffrey Birnbaum and Steven Mufson file an intriguing dispatch on the process that led to Rep. John Dingell's (D-MI) reversal last week on raising fuel economy standards. They observe that while industry divisions certainly helped weaken his negotiating position-- apparently Nissan decided to break from the pack and advocate somewhat bolder measures-- Dingell was also determined to accept the situation's gravity and get something workable through.

That's progress. And Dingell is definitely keeping with his longtime role as a go-between for the industry, advocating fiercely for their efforts but at the same time ultimately being vital to nationalizing state-driven efforts. Still, just because he genuinely "gets the issue" and accepts reality, that doesn't mean he has to like it, as Politico's Ryan Grim reports over at The Crypt:

Obviously, Pelosi got her way in [their] standoff, so it wasn't totally surprising that Dingell offered his support for the bill during a closed-door meeting of House Democrats Tuesday night. After all, outward kindness is the usual post-script for most political fights on Capitol Hill since lawmakers would rather bury the hatchet (in their opponent's back).

But the Energy and Commerce chairman (and longest serving House member) wasn't exactly gushing in his praise of the bill. Instead, according to folks in the room, he told members he supported the much-anticipated legislation and then went on to predict Republicans won't vote for it, the Senate probably can't pass it and President Bush will definitely veto it on the off chance that they do.

Not exactly a ringing endorsement for those wavering Democrats.

All Eyez on Stephen Johnson

It's a shame that Roll Call operates behind a subscription wall, because Rep. Ed Markey (D-MA), who chairs the House's special committee on global warming, has a great op-ed there today summarizing where things stand moving forward from the energy bill negotiations, "Global Warming At the Starting Gate." One key highlight:

Seventeen states (representing over 46 percent of Americans) have adopted or will soon adopt global warming emissions standards for vehicles. The federal district court in Vermont recently held that federal law does not prohibit such measures. What remains to be seen this year is whether the Bush EPA will grant these states the waiver they need to enforce these tailpipe standards, or spurn their ambitious action.

In addition to loving Markey's framing of Congress' movement as a launching point for so much more, we cannot stress the point he makes above with any more emphasis. Given the trends in the courts (which Markey also notes) and the rising tide of action at all levels, the spotlight is now on the EPA regardless of what happens with the energy bill. Now that Congress has smartly resisted pressure to do anything that remotely borders on preemption, it's incumbent on the administration to follow suit.

Yesterday's veto threat on the energy bill doesn't exactly inspire confidence along those lines, as White House economic advisor Allan Hubbard's letter to Speaker Pelosi pretty much reiterates the industry's ideal outcome in its language regarding auto efficiency (emphasis ours):

Energy Bill Redux: Moving Forward

As most readers probably know by now, late on Friday, negotiators in the House of Representatives reached a deal to move forward with the energy bill's long-awaited increase in CAFE standards. Longtime climate observer David Sassoon, now running the website SolveClimate.org, has probably the best take on this development encapsulated in a single headline: "Pelosi Heroic, But Sea Change Still Needed."

Futher, detailed analysis from the NY Times' Matthew Wald basically confirms David's synopsis. The bill is a itself sea change moving forward (particularly compared with the pace and content of other recent energy legislation) and it avoided the most troubling moves advocated by the auto industry. But it is still very much a mere starting point, on the federal level, toward slowing the pace of greenhouse gas emissions and setting us on a more sustainable path.

House leaders deserve a world of credit for moving forward after decades of neglect, and for rejecting key industry demands wholesale while winning the support of key lawkmakers and auto executives. This is truly, as David notes, a "signature achievement" to crow about to a large extent.

But like the youth climate activists that invigorated us at Power Shift, we want more. Yet we're now even more optimistic that so do congressional leaders, not to mention the cutting-edge state and local actors that industry spinmeisters are claiming should be satisfied by Friday's deal.    

Riegel Arguments Tomorrow

Tomorrow morning, the Supreme Court will hear oral arguments in Riegel v. Medtronic, the medical device preemption case in which we've filed an amicus brief in support of the plaintiffs on behalf of state and local officials.

Warming Law offered a detailed overview of the case when the Supreme Court decided to grant cert., and CRC Executive Director Doug Kendall just published an essay in Slate this afternoon pointing out the flaws in current preemption doctrine coming from the Court. Tomorrow morning we should also have a guest essay up over at Gristmill laying out the case's potential importance for current and future global warming litigation, particularly in wake of positive signals and impacts from the Court's ruling in Mass v. EPA. CNNMoney.com and the St. Paul Pioneer Press also have previewed oral arguments.

Allison Zieve from Public Citizen will be arguing the case on behalf of the Riegels, while Medtronic will be represented by former Solicitor General Ted Olson (now with the Los-Angeles-based law firm Gibson, Dunn and Crutcher, which also happens to be representing the auto industry in the clean cars lawsuits). Also participating is Olson's successor, Paul Clement, who has intervened on behalf of the FDA's support for preemption.

Congress vs. Everyone Else on Clean Energy

As per lots of media and online buzz over the last few days, and the latest dispatch from CNN, Congress is nearing a deal on what would essentially be a mini-energy bill that focuses on renewable fuels and on raising CAFE standards for the first time in decades. Hill Heat has been providing comprehensive coverage as details have emerged. Depending on what gets worked out regarding auto emissions, the result could theoretically range from a flawed and incomplete-- but significant-- step forward to an unworkable poison pill.

Judging from the latest reports, it seems that almost all vehicles coming out of Detroit would become subject to a fleetwide average of 35 miles-per-gallon by 2020, but there would an exemption for large "work trucks" and the maintenance of separate standards for cars and trucks. Basically, the infamous "SUV loophole," which the 9th Circuit Court of Appeals recently ruled is the result of an arbitrary and capricious evaluation, would remain in some reduced form, though its actual details and impact remains unclear. Sources close to the negotiations believe that the 9th Circuit's opinion will help pin down regulators from undermining the overall gains in efficiency in any significant way; we'll reserve judgment on this point until we've seen a draft of the proposed legislation.

More fundamentally troubling, and damning of the whole process even though it thankfully stands little chance of being agreed to, is the continued effort by the auto industry and Rep. John Dingell (D-MI) to preempt bolder standards by California and other states, and undermine the Supreme Court's intent in Mass. v. EPA in the process. From Greenwire (subscription only):

Exxon's Legal Skeptics

Global warming law is clearly a hot topic, and we here at Warming Law are happy to see other legal organizations, such as LexisNexis, follow us in spotlighting developments in this emerging area.  But a featured post on the new LexisNexis Climate Change website raised our collective eyebrows.

The post chronicles a recent global warmng seminar held in Washington DC, by the law firm Gardere Wynne and Sewell, a Texas-based firm that has represented Exxon, Chevron, and other oil and gas industry clients.  What's surprising is that the seminar apparently focused not on legal developments (which, as readers of this site know, have been pretty bad for Gardere's clients recently), but rather on "the chilling effects of global warming."

You see, according to the good folks at Gardere, the real problem here is not global warming, but rather "a progressive movement [which is] afoot to effect monumental change in the way Americans think." This movement, we're told, has taken on "a religious ferver" and now threatens to "stifle all forms of debate and dissent." And it is being led, in part, by "an organized trial bar" trying "to create massive controversies that involve no proven injuries to any one in particular and result in massive windfalls to contingent fee counsel."  The seminar was designed as a rallying call to "the proponents of individual rights and a free-market system" to "get to the table and make their positions known."

It's remarkable to us that a law firm of Gardere's size and reputation would spout such malarky. First, there is no evidence that "non-green" views are being stifled, it's simply that with each passing day it becomes ever-more-clear that the world's scientic community is right about the need to respond to global warming and the handful of Exxon-funded global warming skeptics are wrong. Second, most proponents of "individual rights and the free-market system" recognize that no individual has the right to impose costs on his neighbors and the broader community and that the free-market does a poor job of regulating interstate and international externalities -- pollution that crosses state and national lines.

Finally, as to the claim that developments in global warming law are the product of an "organized trial bar," we note that every global warming case we know of has been either brought by industry (preemption cases) or by a coalition of states, local governments and environmental organizations (cases like Mass v. EPA, which seek to force a federal response). We're not aware of any global warming litigation brought by contingent fee trial lawyers. 

If there are indeed "massive windfalls" to be had in bringing suits to reduce global warming pollution, the folks at Gardere should let us know (we could certainly find some friends in the legal profession to pursue them). Until then, we'd urge the Gardere to focus a bit more on the law and less on political screeds. We can only hope (in the spirit that even Exxon deserves good counsel) that they are better at the former than they are at the latter. 

The Auto Industry's No-Good, Horrible, Very Bad Arguments

Another important aspect of the auto industry's potential setback in U.S. District Court that stands out to us is growing evidence that the industry's case is running out of gas beyond the impact of Massachusetts v. EPA. In presenting their case yesterday, it seems that industry attorneys mostly offered hyperbolic sweeping and defensive-sounding legal arguments (to be sure, an improvement on simply making things up when spining to the public) about the need for preemption and the purported economic disaster that might result from California's regulations:

Although federal law allows California to take a lead role in reducing air pollution, Congress never "intended a single state to have such sweeping authority to unilaterally set national fuel economy policy ... and profoundly affect a vital national industry," said Raymond Ludwiszewski, lawyer for a trade group of international automakers.

[...]

The regulation would mandate more than a 50 percent improvement in fuel economy over the next eight years," said Andrew Clubok, lawyer for the Association of Automobile Manufacturers and other plaintiffs. "It is undisputed that this regulation would lead to job losses."

Deputy Attorney General Marc Melnick replied that Congress has authorized California to adopt more stringent air-pollution standards - with EPA approval - even if one effect is higher gas mileage. 

It's not surprising to see this kind of overreach coming from the automakers even inside the courtroom. During a recent seminar on global warming  litigation (which included CRC's own Doug Kendall) AIAM attorney Charles Haake essentially conceded the weakness of his clients' foreign-policy preemption arugment (which claims that state standards undercut the Bush administration's foreign policy on climate change).

The Auto Industry's No-Good, Horrible, Very Bad Week Continues

Opening an editorial on the need for tougher auto emissions standards, the LA Times notes that the last few months have not been kind to the legal position of those standing in the way, and with good cause:

The auto industry and the Bush administration are now 0 for 3 in their attempts to block tighter fuel economy standards in court. There's a reason for their rotten record: They don't have a case. And the longer they delay taking action, the higher the price Americans will pay.

And it's looking like that losing streak might well continue.

Yesterday afternoon in Fresno, U.S. District Court Judge Anthony Ishii heard arguments on competing motions for summary judgment in the industry's lawsuit against California's tailpipe emissions standards. In a September 2006 opinion tossing out two of the auto industry's claims but denying the state's motion for summary judgment on three others, Ishii appeared fairly open to the industry's case regarding conflict preemption-- that is, the assertion that California's standards would conflict with and undermine the federal fuel economy regime. His opinion also seemed to throw cold water on the state's argument that its standards, if granted an EPA waiver, would automatically become a part of federal law and thus eliminate any conflict.   

But according to Bob Egelko of the San Francisco Chronicle, the state's arguments about the impact of this spring's landmark Massachusetts v. EPA  decision appear to have had a clear impact on the judge's thinking:

Full of Hot Air

Gauging some of the critical reaction to Thursday's 9th Circuit ruling, we're sadly not surprised to see any number of blatant overreactions and inaccuracies bandied about. After all, the auto industry has seen fit to cite non-existent language in the Clean Air Act and pretend that California's standards would create an unwieldy patchwork. Seeing its defenders jump head-first into the same territory isn't much of a stretch.

Still, in reading these hyperbolic reactions, it's striking just how little attention their authors seem to have paid to the cases at hand. Take Newsday columnist Raymond J. Keating, who phones in a day-after reaction at the Business Trends blog. After leveling a tired allegation of "judicial activism" and blasting the Mass. v. EPA ruling in that vein, Keating goes on to argue that stricter CAFE standards mean "reduced safety (i.e. more deaths) on our roads and highways"-- quite ironic given that this very ruling demolishes that canard.    

Perhaps the worst case, however, comes from an Investors Business Daily editorial decrying "Judicial Overreach." After angrily disputing the reality of global warming, IBD feeds readers the following blatant lie assertion:

The only magistrate who has made sense in this case is unfortunately no longer involved. Judge Martin Jenkins of the Northern District of California initially ruled in a lower court in September that the "global warming thicket" is a political issue that should be untangled by policymakers, not the courts.