Warming Law

More on Judicial Junkets

The Associated Press has an excellent summary of the issues raised yesterday regarding judicial ethics and federal judges' membership on the board of junketing organizations:

A federal judge has resigned from the board of a corporate-funded group that provides free seminars and trips to judges after a judicial ethics panel recommended he quit. Two other judges remain on the board, either unaware of the ethics advice or unconcerned by it.

U.S. District Judge Andre Davis of Baltimore said he resigned from the board of the Montana-based Foundation for Research on Economics and the Environment soon after he received a private opinion from the federal judiciary's Codes of Conduct Committee.

The panel concluded, Davis said, that "there was, shall we say, tension between one or more of the canons that applied to federal judges and the appearance of a judge, federal judge, as a member of the board of directors" of the foundation.

Simply put, the confidentiality that Judge Quist invoked in his response letter yesterday has already been waived by the judge involved. Everyone already knows that the Committee's opinion advises against service on FREE's board; why can't the public have the benefit of its analysis?.

Meanwhile, the NY Times has strongly endorsed Senator Feingold's proposal to ban most judicial junkets, as well as the larger judicial pay raise it would be tied to, on today's editorial page. Markup of the bill is expected later this afternoon; stay tuned for updates...

Less Talk, More Action: Some More GOP Warming Thoughts

David Roberts has posted the actual transcript of last night's GOP presidential exchange on California's clean cars standards, and a quick look reminds us of something critical that we failed to note in our excitement that the Bush administration is now isolated on this legal point.

All of the candidates did express support for California's right to take action, with varying degrees of enthusiasm (as per the Detroit News, Mitt Romney is desperately trying to reconcile his answer with earlier remarks implying that he wanted preemption language in December's energy bill). But none of them, including the front-runner in an active position to do something about it, spoke out (nor, to be fair, were they asked) about lifting a finger to overturn EPA's decision before 2009.

All things considered, Senator Barbara Boxer's bill declaring the waiver granted (which now has 21 co-sponsors, and growing each day) is a fairly modest piece of legislation-- one that Senator McCain should have no problem getting behind, if he's not intending to already. It's one thing to answer a general question posed before a national television audience (and, as McCain joked in his response, with Governor Schwarzenegger's physically-imposing frame nearby), though its a great thing; it's another to really do something about it.

Senator McCain spoke passionately last night about how states like California and Arizona are getting it right on global warming, and pushing all of us forward in an appropriately urgent way. Time is indeed of the essence here, and the sooner California can move forward and potentially bring the rest of us along with it, the better. With the world watching what American states are doing, anyone who aspires to be commander-in-chief should co-sponsor, and actively work to line up votes for, Senator Boxer's critical efforts to overturn EPA's now-isolated decision sooner rather than later. 

Republican Candidates ALL Support California's Global Warming Efforts

Live update as we watch Republican candidates debating at the Ronald Reagan Library in California-- all Republican presidential candidates have come out in support of maintaining the Clean Air Act's federal-state compact and allowing California to press ahead with its landmark clean cars program. They join remaining Democratic contenders Hillary Clinton and Barack Obama in unanimous opposition to the Bush administration's decision to reject California's waiver application for the first time ever.

Janet Hook of the LA Times posed the question directly to Senator John McCain-- whom reports have  set to earn Governor Schwarzenegger's endorsement-- and he used it to praise the Governor's efforts and generally distance himself from the Bush administration on climate change. Mitt Romney was next, and while he criticized McCain's national cap-and-trade proposal, he did stand firm by his support for states' ability to do what they think is best for them, "even if I wouldn't agree with it." Mike Huckabee then spoke up in strong defense of not just California, but the federalist system of state experimentation that it has engaged in. And finally, Ron Paul reiterated his previous support of the waiver.

Cameras cut to a shot of Governor Schwarzenegger smiling in the audience, as well he should. We've got a feeling that somewhere in DC, Stephen Johnson is not so circumspect...

Judicial Ethics and Global Warming: Let the Sunshine In

[cross-posted at Gristmill]

Community Rights Counsel has spent much of the last decade researching and documenting undue, anti-environmental corporate influence on the federal judiciary, exposing the proliferation of privately-funded junkets billed as "judicial education seminars." Through reports such as 2004's Tainted Justice, we've highlighted the agenda of particular hosting groups, one steeped in libertarian economics and a regulatory agenda that is deeply opposed to government efforts to combat global warming. Recent ethics rules for the federal judiciary have addressed judges' participation in these junkets, but contained loopholes that have continued to benefit their supporters.

One of the organizations involved in this arrangement is the Montana-based Foundation for Research on the Environment and Economics (FREE), a pro-business/anti-regulation outlet that has received heavy funding from corporate interests such as Exxon-Mobil and ideological forces such as the foundations run by the Scaife and Coors families. Two years ago, in response to an ethics petition filed by CRC, the federal judiciary's Committee on Codes of Conduct authored a non-public ethics opinion deeming it inappropriate for federal judges to sit on FREE's board. Unfortunately, in the interim, two federal judges-- Danny Boggs of the 6th Circuit and Edith Brown Clement of the 5th Circuit-- have continued to ignore this opinion, free from public scrutiny due to the Judiciary's keeping this matter cooped up.

That should end today. CRC has written the judiciary seeking public release of this opinion, which likely played a role in three other judges' (very reluctant) decision to resign from FREE's board [UPDATE: we've received a rather pointed and quick response from Judge Gordon Quist, declining our request]. The timing of this matter is critical-- as documented here in the Daily Journal, legislation aiming to end this practice stands a decent chance at passing when the Senate Judiciary Committee takes up judicial pay raises tomorrow:

Although the judges find the seminars stimulating, they also enjoy the resort-style accommodations. When asked by ABC News whether a judicial seminar at the Omni Tucson Resort was a "junket," one judge responded in Clintonian terms: "It depends on what you mean by 'junket.'" Another judge candidly described the conference as his well-deserved "vacation." As one seminar host put it, these plush resorts are "a very useful place to have a conversation."

The U.S. Congress is now poised to end this cozy arrangement. As it considers legislation to boost judicial salaries, a move long overdue, the Senate Judiciary Committee is examining a bipartisan proposal...that would prohibit judges from accepting travel gifts from these private groups, with reasonable exceptions for bar associations and the like. Just as Congress relinquished certain perks when it approved previous pay raises for itself, [Senator Feingold proposes] that judges do the same.

Land Use and Global Warming: San Francisco's Treat to America?

Hing Wong, a San Francisco regional planner and California state officer of the American Planning Association, had an important op-ed in yesterday's San Francisco Chronicle. Wong makes the case that land-use planning is another area in which California has the potential to lead the climate fight, beyond its landmark focus on auto emissions and limiting CO2 emissions:

Achieving these goals will require state and local governments to do more than tighten emission standards for cars and trucks. It will require an integrated effort from state, regional and local governments that considers how community and land-use planning policy decisions can help.

To guide local government agencies in planning-related decisions that respond to reducing greenhouse-gas emissions, the American Planning Association's California chapter has published its recommended policy principles for climate change response.

City and county governments have the ability and opportunity to help California achieve these goals because they are the agencies responsible for creating local community land planning policy. Many cities and counties in Northern California have already done so with impressive results, and even more are following their lead.

Wong goes on to cite several regional examples that have contributed to economic growth, aesthetic beauty, resource conservation and climate-friendly growth-- exactly the kind of mix that the NRDC's Kaid Benfield wrote passionately about over at the Switchboard the other day. He also notes that several other governments are revamping their general plans to encompass smarter growth, and that regional planners are following suit.

Between bottom-up guidance like the California APA's model principles, and the good-cop/bad-cop efforts of Attorney General Jerry Brown to encourage and pressure reticient planners who might otherwise focus on the rapid-growth bottom line of traditional developer interests, California is fast becoming the epicenter of a smart-growth revolution. Others around the country are following suit, using a mix of existing laws and innovative policies to drive this critical conversation forward.   

Judging the Climate: What's At Stake

Elsewhere in Sunday's Reuters article on stepped-up auto industry lobbying, we found another interesting tidbit concerning the industry's legal prospects: the reality that executives believe the Supreme Court is their best legal hope, though the judiciary may become less friendly depending on the results of this fall's election.

In other words, industry realizes that its legal arguments are going nowhere in the courts given the relevant law and precedent, and will potentially wither away depending on what kinds of judges are appointed and confirmed. In the interim, the balance of the federal judiciary remains in question due to 45 existing vacancies, a matter pressed last night in President Bush's final State of the Union address. While Bush insists that he has submitted nominees "who will rule by the letter of the law, not the whim of the gavel," the Boston Globe notes suspicions otherwise a thoughtful editorial: 

If President Bush is serious about filling vacancies on the court before his term ends, he would be wise to send over candidates with greater bipartisan appeal. Nominating such judges would also be politically shrewd, for it would increase pressure on Democrats on the Senate Judiciary Committee to approve his nominees.

Instead, Bush has missed good opportunities to do just that. For a seat on the US Court of Appeals for the Fourth Circuit, the president last year offered the name of Virginia lawyer E. Duncan Getchell. The nominee recently took himself out of consideration, claiming that the Senate Democratic leadership would not let his hearing proceed.

Getchell's nomination was the most publicized of this trend, but hardly the only recent example, as Judging the Environment has tracked assiduously. We've done our part to raise concerns about one particular example, 4th Circuit nominee Steve A. Matthews, and his long-standing ties to those who oppose any and all regulation related to climate change (and, for that matter, would seem to deny its existence). Court appointments should be a venue not for ideologues with a potential predisposition toward climate skepticism, but for judges who will base their rulings on the law, plain and simple.

The Disinformation Campaign That Won't Die

UPDATE, 4:50 PM: The industry may well also be trying to head off state-based efforts to encourage cleaner cars by levying fees on gas guzzlers and incentivizing more efficient cars. David Roberts has more on how  "feebates" might initially stand in for, and ultimately complement, the Pavley standards.

Reuters has put together an interesting look at the auto industry's current positioning, reporting that car companies and their allies have stepped up efforts to lobby states against California's landmark auto emissions law, fearing that its legal efforts may fall short and EPA's recent waiver denial won't hold up in the long term. Tucked in the article is the resurrection of one of our favorite talking points:

Dave McCurdy, chief executive of the Alliance of Automobile Manufacturers, said in an interview that the industry's lead trade group would redouble efforts to "educate" states that have committed to or are thinking about adopting the measure.

McCurdy said the California-inspired initiative would result in a "patchwork quilt of inconsistent and competing fuel economy programs" that would lead to "confusion, inefficiency, and uncertainty for automakers and consumers."

Similarly, responding to last week's Senate testimony by EPA Administrator Stephen Johnson, the National Association of Manufacturers' Carter Wood praised Johnson and added the even more extreme whopper that "Better a national standard to address a global phenomenon than 50 different state laws and regulations creating havoc for manufacturers and higher prices for consumers."

Both Wood and McCurdy might want to examine Johnson's testimony in a way that goes beyond his  evasive talking points written submission. Had they done so, they'd have discovered, as we captured in our liveblog, that Johnson folded when pressed about the validity of the "patchwork" argument:

11:33 AM: [Senator] Klobuchar says her constituents are confused that one agency (CDC) says this is a public health threat, but EPA seems to not be on that page yet. He should have his clear endangerment criteria, same rationale for the states having compelling conditions. Johnson goes back to Section 209 criteria being different still. He does admit that his "patchwork" argument has NOTHING to do with his legal argument-- also adds [in response to the point that there are really just two standards] that "perhaps its a checkerboard."

In other words, there are two potential standards here-- federal and California-based-- and anyone implying or saying otherwise is, frankly, making things up. State officials being subjected to industry pressure should be well aware of the ongoing disinformation campaign going on here.

Prof. Adler and I Discuss the Standing Ruling in Mass. v. EPA

Posted by Tim Dowling

Over at the Volokh Conspiracy, Jonathan Adler argues that the Supreme Court erred in Mass. v. EPA when it concluded that Massachusetts and the other Petitioners had standing.  In particular, he finds fault with the court's analysis of "injury in fact," stating that the asserted injuries were not adequately particularized and concrete because they were generalized and widely shared, and that the alleged injuries were not sufficiently imminent. 

In the comments section to his post (here and here), I take issue with his reading of the applicable law, the factual record, and the court's ruling in Mass. v. EPA, emphasizing that under prior standing cases, one doesn't lose standing simply because one's injury is widely shared, and that the Petitioners alleged actual, ongoing injuries (ongoing erosion of coast land, increased smog, actual loss of glaciers, etc).

Overruling EPA by Amending the Clean Air Act

As we reported yesterday, Senator Barbara Boxer (D-CA) has introduced legislation aimed at allowing California (and other states) to begin enforcing its landmark vehicle GHG emissions law. The bill, which has 17 original, bipartisan cosponsors (all from states that are cited as having enacted the CA standard or moving toward doing so), has been dubbed the "Reducing Global Warming Pollution from Vehicles Act of 2008." It essentially reverses EPA's decision to deny the waiver by amending Section 209 of the Clean Air Act to add the following subsection:

"(f) WAIVER.---Notwithstanding subsection (b) or any other provision of law, the application for a waiver of preemption dated December 21, 2005, submitted ot the Administrator pursuant to subsection (b) by the State of California for the regulation of that State to control greenhouse gas emissions from motor vehicles shall be considered to be approved."

All in all, this is a fairly modest piece of legislation, citing numerous findings (including the ongoing necessity of California's role as a "laboratory of emissions-control innnovations" and the rejection of relying on national fuel economy standards alone in Massachusetts v. EPA) to lead up to its conclusion that "it is the sense of Congress that the denial...is not supported by science, precedent, or applicable law."

Also, the resulting legislative solution is in itself fairly soft-spoken compared to what it could have (justifiably) said, putting aside the ongoing dispute over the application of subsection (b), which lays out the process and criteria for a waiver application. Instead, Congress would simply declare that notwithstanding various interpretations that may exist-- however patently ridiculous they may be-- this particular waiver application is well-founded and "shall be considered to be approved." The aforementioned language concerning the reversal also seems designed to make it clear that the waiver approval would still emanate from EPA as per the Clean Air Act's delegation of authority; and that Congress is not generally the vehicle for these determinations, this particular extraordinary circumstance aside. 

Boxer's legislation has formally been referred to the Environment and Public Works Committee, which she chairs, and which includes six of her original cosponsors as members (it would need ten votes overall to reach the Senate floor).

EPA on the Hot Seat: Wrap-Up and Reflection

To be completely honest, while we expected a long hearing today, we didn't quite realize it was going to entail over four hours of testimony and four distinct liveblogging threads. A lot of stuff there to process, and Hill Heat (which also live-blogged part of the hearing over at Daily Kos), Calitics, Think Progress, and TPM Muckraker all spotlight key highlights (the latter two with the assistance of somewhat-hillarious video clips).

At the end of the day, though, EPA Administrator Johnson's rationale was best summed up in one of his exchanges, a little after noon, with Senator Sheldon Whitehouse (D-RI). Observing that Johnson had responded to a prior question by saying that California's vehicle emissions standards were not needed "in my opinion," Whitehouse flatly stated that the law is pretty clear that he can't substitute his preferences for California's policy judgment. A bit flummoxed, Johnson fell back once again on the argument that the Clean Air Act lets him decide whether California has met its conditions.

In other words, Johnson was saying that yes, he can essentially do as he pleases in terms of interpreting Section 209 of the Clean Air Act. We stand by our earlier post on this subject, stating that while he may have some amount of deference provided, it has to be within reason:

This argument for strong deference to the Administrator's reading of the act (usually we'd say "agency deference," but it's now clear that the rest of the agency isn't at all with him) is right along the lines that our own Tim Dowling anticipated-- and debunked as unlikely to stand up in court in this case-- after the waiver was denied. EPA staff seem to have convincingly laid out why, under the law, the waiver should be granted and anything to the contrary wouldn't fly. Johnson's assertion that the Clean Air Act lets him instead impose his policy preferences entirely novel reading of the Act is simply shaky. 

Sure, Johnson said today, things like precedent, 99% supportive public comments and his staff's unanimous opinions weigh on him (though by the way, many of those public comments looked to him like a "card-writing campaign" designed to draw him into a "popularity contest"-- the nerve of those people, and the tens of thousands we're told have already emailed to protest his decision!). But at the end of the day, in his incomplete legal judgment, it's his independent decision to decide that there weren't "compelling and extraordinary circumstances" for a waiver because global warming is different and is a worldwide pheonomenon, and that's all there is to it.