Judicial Misconduct allegations (globally) warming up?



Former E.P.A. regulatory enforcement chief Eric Schaeffer writes in this op-ed article from the Washington Post's Sunday Outlook Section that something stinks in Kansas … well, Washington.

While it appears to be just one more accusation of impropriety, it rings more loudly for Maine, which found itself on the losing end of its effect.

The article looks at the continuing story of a states' spearheaded lawsuit arguing that the Clean Air Act requires EPA to regulate carbon dioxide (the chief agent of global warming) as an air pollutant.

More personally, this case inspired my student law review note (which you can't access on the internet unless you have a Lexis-Nexis or Westlaw account).

The D.C. Circuit Court of Appeals ruled last summer that EPA properly denied a request to regulate CO2, reasoning that the science isn't conclusive enough to support the contentions that global warming has an effect of human health or welfare. A group of states, including Maine, joined a handful of environmental activist groups led by Natural Resources Defense Council in challenging EPA's denial as illegal.

In my article, I noted that a 1970s ruling by the same court, which ordered EPA to begin regulating airborne lead as a pollutant served as a model for the court hearing the CO2 case and

… provides the states a strong likelihood to succeed on their criteria pollutant challenge. However, the states' case rests on their ability to convince a court that global warming [results in] … "demonstrable harm" and is an actual threat to public health or welfare. To succeed, the states must present evidence in support of their public health and welfare claims that will overcome the EPA's likely retort – that the science of global warming impacts is inconclusive and more study is required before regulations are warranted. As one set of commentators suggests, this is not an insurmountable goal. * The commentators [Veronique Bugnion & David M. Reiner] note, "current scientific findings, though uncertain, suggest some degree of human interference with the climate," and that the result … "would support the regulation of greenhouse gases as a policy decision if, in EPA's judgment, human interference translates into endangerment."
* Footnote:
The authors recognized that "the statutory language also suggests that the [Clean Air Act] does not require EPA to know the precise health and welfare effects that a pollutant causes in order to justify adding that pollutant to the list." They pointed to the [1970s] court's holding, which "acknowledged that some of the questions involved in the promulgation of environmental regulations are on the frontiers of scientific knowledge' and therefore require decisions based more on judgment than purely factual analyses.'"

Reading now that two judges who supported that ruling spent a lovely weekend out west with the tab picked up by the polluters (who were also amici/"friends of the court" favoring EPA's position), leads me to an unhappy place. (For the record, only Judge Sentelle sat on the three-judge panel hearing the case, but Judge Ginsberg later voted against the motion for rehearing en banc).

Granted, I don't think the likes of Judges Ginsberg or Sentelle needed a whole lot of arm twisting. Ginsberg, after all, is at the guy at the heart of the so-called Constitution in Exile movement, and believes that several of the Court's federal power precedents need to be overturned. In particular, he wrote in a major Clean Air Act case that some portions of the Clean Air Act were unconstitutional because they delegated too much authority to the states and a return to pre-New Deal court doctrine. Ginsberg's opinion was so reactionary that Justice Scalia wrote the Supreme Court opinion that overturned it and Justice Thomas (another Constitution in Exiler) wrote a concurrence that backed off any support for Ginsberg's position.

That said, I agree with Schaeffer's point about appearances. Sure, there isn't much basis for assuming Justice Scalia's fishing trip with VP Cheney changed that jurist's philosophy. Even still, the appearance warrants some amount of public scrutiny. Sadly, the public doesn't appear to know who/what the DC Circuit is or does, much less bear any capacity for outrage over such technical controversies.

I hope I'm wrong.

For what it's worth, one of the three judges, Judge David Tatel dissented (see page 21) in last summer's opinion, validating many of the states' arguments. He observed that:
Taking a constricted view, EPA insists it has no authority to regulate GHG emissions even if they contribute to substantial and harmful global warming. By contrast, petitioners claim that Congress has plainly given EPA the authority it says it lacks.

Judge Tatel opined:

I think EPA's order cannot be sustained on the merits. EPA's first given reason – that it lacks statutory authority to regulate emissions based on their contribution to welfare-endangering climate change – fails, as I explain in Part III, because the statute clearly gives EPA authority to regulate "any air pollutant" that may endanger welfare … with "air pollutant" defined elsewhere in the statute as "including any physical, chemical, biological, radioactive . . . substance or matter which is emitted into or otherwise enters the ambient air …" EPA's second given reason is that even if it has statutory authority, it nonetheless "believes" that "it is inappropriate to regulate [greenhouse gas] emissions from motor vehicles" due to various policy reasons. As I explain … none of these policy reasons relates to the statutory standard – "cause or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare," – and the Clean Air Act gives the Administrator no discretion to withhold regulation for such reasons.

He further wrote:

I have grave difficulty seeing how EPA … could possibly fail to conclude that
global warming "may reasonably be anticipated to endanger public health or
welfare," with effects on welfare including "effects on soil, water, crops,
vegetation, manmade materials, animals, wildlife, weather, visibility, and
climate, damage to and deterioration of property, and hazards to transportation,
as well as effects on economic values and on personal comfort and well-being."
It thus comes as no surprise that EPA's petition denial not only undertakes [no
required] risk assessments, but also utterly ignores the statutory
standard.
…
EPA apparently dislikes the fact that section 202(a)(1) says
the Administrator "shall" regulate – rather than "may" regulate – on making an
endangerment finding. But EPA cannot duck Congress's express directive by
declining to evaluate endangerment on the basis of policy reasons unrelated to
the statutory standard. Although EPA is free to take its policy concerns
to Congress and seek a change in the Clean Air Act, it must obey the law in the
meantime.
…
Although this case comes to us in the context of a highly controversial question – global warming – it actually presents a quite traditional legal issue: has the Environmental Protection Agency complied with the Clean Air Act? For the reasons given above, I believe that EPA has both misinterpreted the scope of its statutory authority and failed to provide a statutorily based justification for refusing to make an endangerment finding. I would thus grant the petitions for review.

For the record, the majority opinion's author, Judge Randolph was appointed by the first President Bush, Ginsberg and Sentelle by Reagan, and Tatel was a Clinton appointee. Surprising, eh? It's fun to note that Judge Sentelle still communes with the Federalist Society at places with names like "Spanky's Restaurant."

Something about an "impartial judiciary" harkens to mind …

The States filed their Petition for Certiorari (review by the U.S. Supreme Court) in March 2006, which was supported by several amici/friends of the court including this group of scientists and this group of municipal officials. The High Court is expected to announce by the end of this month whether it will hear the case next year.

Meanwhile, a parallel (but apparently raising different claims) suit is now working its way through the D.C. Circuit docket. The coalition of states now alleges that EPA's New Source Review rules illegally failed to regulate carbon dioxide emissions in new pollution sources. NRDC and Sierra Club have also joined the states in that action.