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March 21 2012

18:16

Supreme Court Affirms Idaho Couple's Right to Challenge E.P.A.

The Supreme Court rules that Idaho landowners have the right to seek immediate judicial review of an Environmental Protection Agency order designating their property as wetlands.

February 06 2012

17:56

Here We Go Again – Republican Attacks On EPA Kick Off 2012 Agenda

With the U.S. Environmental Protection Agency (EPA) set to finally enact stricter air pollution standards in accordance with the Clean Air Act and two subsequent U.S. Supreme Court decisions requiring them to do so, powerful Republicans in the U.S. House of Representatives are working to make sure that the new standards never see the light of day. The specific measures being targeted are the EPA’s new standards for carbon emissions from power plant smoke stacks.

Fred Upton (R-MI), chairman of the House Energy and Commerce Committee, along with Republicans Joe Barton (TX) and Ed Whitfield (KY) sent a letter last week to the White House, demanding that the Obama administration take action to stop the EPA from regulating carbon emissions from power plants.

From their letter:

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January 10 2012

16:52

October 31 2011

16:33

On Our Radar: Another Energy Bankruptcy

The failure of Beacon Power, which received a federal loan guarantee, could add to criticism of the Obama administration's green energy financing.

June 21 2011

18:10

Heritage Foundation Wastes No Time Spinning Court Ruling On Greenhouse Gas Emissions

The U.S. Supreme Court ruled against plaintiffs yesterday in a lawsuit (American Electric Power Co. v. Connecticut) brought by six states against several utility companies and the government-owned Tennessee Valley Authority. The states (California, Connecticut, Iowa, New York, Rhode Island, and Vermont) were attempting to force the utility companies to cut their greenhouse gas (GHG) emissions on the grounds that the emissions were a “public nuisance.” The Court unanimously declared that the judiciary should stay out of the matter because the Environmental Protection Agency (EPA) already has the authority to regulate emissions under the Clean Air Act.

President Obama previously stated that he stood with the utility companies in this suit, as well as in a similar suit being decided in a lower court. The utility companies in the suit included Duke Energy, American Electric Power, Southern Co, Excel Energy, and the aforementioned Tennessee Valley Authority.

The conservative think tank Heritage Foundation wasted no time yesterday in claiming that the Court’s ruling was a major blow to environmentalists, and managed to take a cheap shot at some of the liberal members of the court:

In a coherent and entirely rational argument that one does not always see from a liberal justice like Ruth Bader Ginsburg, the opinion pointed out the fallacy of what the plaintiffs were trying to do – convince the federal courts to step into the role of environmental regulators and take the first stab at making complex scientific decisions. [emphasis added]

Heritage writer Hans von Spakovsky also pointed out that Justices Alito and Thomas disagreed with the Court’s previous ruling in Massachusetts v. EPA, where the Court ruled that the EPA has the authority to regulate GHG emissions:

Justice Alito wrote a very short concurrence, joined by Justice Thomas, that consisted of just one paragraph. Alito joined in the judgment of the court, but did so “on the assumption (which I make for the sake of argument because no party contends otherwise) that the interpretation of the Clean Air Act adopted by the majority in Massachusetts v. EPA is correct.” In other words, Alito and Thomas were questioning what many have previously disputed – the erroneous conclusion of the Court that carbon dioxide is even a “pollutant” that is covered under the Clean Air Act.

The Heritage Foundation has a long history of denying climate change and attempting to downplay the effects. Earlier this year, the group wrote about how environmental activists were attempting to use the courts to pursue their agenda:

The recent spate of global warming lawsuits is an attempt to circumvent the political process and implement public policy by judicial fiat. Unable to advance their policies through Congress, global warming activists have turned to the judiciary to implement their agenda. Although this legislation-through-litigation violates the Constitution’s separation of powers principles, some federal judges are receptive to such lawsuits.

There is also a certain element of greed driving climate change litigation. The plaintiffs’ bar earned literally billions of dollars in attorneys’ fees in the court fight against tobacco companies, and the latest generation of plaintiffs’ attorneys sees the current battle over climate change as an opportunity for another legal fee bonanza—one that could easily eclipse the windfall from tobacco lawsuits. The personal injury bar is interested only in deep-pocket American energy and utility companies, even though any of the many producers of “greenhouse gasses” like carbon dioxide could be a target.

Last year, Ben Lieberman, the Senior Policy Analyst for Energy and Environment at The Heritage Foundation, wrote an op-ed claiming: “What I conclude from a policy standpoint is that global warming is clearly not a crisis and should not be addressed as one…None of the scary stuff about global warming is true, and what is true about global warming, what the science actually tells us about man’s role in changing the climate, is far from terrifying.

It should come as no surprise that some of the biggest financiers of the Heritage Foundation include oil giants Exxon Mobil and Chevron Texaco. In addition, Greenpeace has pointed out that the organization received more than $2 million from Koch foundations from 1997 – 2009. Greenpeace and DeSmogBlog have also noted that Heritage has been involved in a strategic cover up of climate science and that the group has been leading the misinformation campaign on climate change for years.

The Court’s ruling might seem like a setback, but there is clearly a silver lining. Justice Ruth Bader Ginsberg, who wrote the opinion in the ruling, said that the plaintiffs were simply making their case in the wrong forum.

Furthermore, this ruling reaffirms the Court’s previous ruling that EPA has the authority to regulate this air pollution under the Clean Air Act. While some politicians are working to repeal the EPA’s authority, the U.S. Supreme Court just gave the agency a much-needed boost.

June 08 2011

19:37

Media Matters Report Shows Network TV Preference For Anti-Environment Guests

Ever since the U.S. Supreme Court ruled in 2007 that the Environmental Protection Agency had the authority to regulate greenhouse gas emissions (GHGs) under the Clean Air Act, Republicans and other climate-deniers have been given an unprecedented amount of airtime on television to deride the EPA’s new power. The folks over at Media Matters for America released a study showing that between December 2009 and April 2011, 76% of cable news guests were opposed to allowing the EPA to regulate GHGs, while only 18% spoke favorably of the decision.

As their research shows, these views are actually at odds with public opinion, as 71% of the public believes that the EPA should be allowed to regulate global warming pollution, and 76% believe that the government should have a direct role in curbing the emissions from polluters operating inside the United States.

Not only were the elected officials that appeared on most of these shows against regulations, but most also had received money from the energy industry during their careers. <!--break-->

Here are some of the highlights from the Media Matters report:

Media Matters examined TV news coverage that included elected officials, members of advocacy groups, business leaders, pundits, and others discussing EPA regulation of greenhouse gases. Of these appearances, 152 out of 199 -- over 76% -- opposed regulation. The three outlets that hosted the greatest number of guests, Fox News (FNC), Fox Business (FBN), and CNBC, all featured opponents of GHG regulation at least four times more often than supporters.

Of the 35 cable news appearances by elected officials who discussed EPA regulation of greenhouse gases, 30 were Republicans and five were Democrats. The only cable network that hosted more Democrats than Republicans was MSNBC. CNBC featured eight elected officials, all of whom were Republicans.

Fox News and Fox Business each hosted one Democrat who discussed EPA regulation of greenhouse gases during their appearance. However, those Democrats, then-Sen. Evan Bayh (D-IN) and then-Gov. Joe Manchin (D-WV) both expressed opposition to EPA's GHG rules. By contrast, every Republican who discussed the regulations on cable news opposed the EPA's actions.

According to our analysis, 26 elected officials and candidates for office have discussed EPA regulation of greenhouse gases in TV appearances since December 2009. Of those 26, 23 opposed the EPA's action on greenhouse gases. These 23 politicians collectively received $3,026,041 from companies that generate, produce, or refine fossil fuels from 2007-2010. The three elected officials who supported the EPA received a total of $202,000. On average, the opponents of EPA's regulation of greenhouse gases received approximately $131,500 from fossil fuel companies, while the supporters received, on average, about $67,300.

Of the TV guests who discussed EPA's GHG regulations over 17 months, only one, Patrick Michaels of the Cato Institute, has a background in climate science. Michaels appeared twice on Fox News' Your World with Neil Cavuto and spoke in opposition to EPA GHG rules. Michaels holds a Ph.D. in ecological climatology and was a professor of environmental sciences at the University of Virginia. Michaels has estimated that 40% of his funding comes from the petroleum industry.

You can read the full report at Media Matters for America.

February 08 2011

16:13

January 11 2011

17:03

December 08 2010

14:13

Still Awaiting Our Global Warming "Scopes Trial"

Republicans in the U.S. Congress are gearing up to block any major move by the Environmental Protection Agency to regulate greenhouse gases--even though the Supreme Court ordered the agency to do so back in 2007. And even though the Congress itself is clearly not going to do anything else to address the problem in the next two years.

But yesterday we learned there’s a paradox at the heart of this obstructionist strategy. If the EPA doesn’t act or is hamstrung--and if Congress continues to dawdle--then guess what? A new global warming case just taken up by the Supreme Court may therefore stand a better chance of surviving the highest level of review—thus providing another possible way of restricting and punishing the polluters who are contributing to climate change.<!--break-->

The case, Connecticut v. American Electric Power, has been wending its way through the legal system since 2004. Meanwhile, related cases, like Kivalina v. ExxonMobil, have sprung up to join it. Let’s call them the “global warming tort cases.”  They have this in common: They try to directly sue major companies who contribute to global warming for damages under a common law doctrine called “public nuisance.” 

In Connecticut v. AEP, it’s a group of U.S. states and their attorneys general—in many ways the most powerful global warming plaintiffs of all, as they represent large populations of people and vast areas of land--claiming that several large utilities are causing them major damages through climate change and its associated impacts. In Kivalina, it’s a small Alaskan village that has been extremely and acutely damaged by climate change--it will literally need to be moved--suing the big boys: ExxonMobil and two dozen other companies for monetary damages, and more.

None of these cases have yet gotten to a full scale trial. Rather, there has been a multi-year hubbub just to determine whether they’re allowed to go there. For as I wrote in 2008 of the tobacco-style “global warming tort cases”: 

Such cases will require the direct laying of blame—proving that a particular company’s (or industry’s) emissions significantly or substantially contributed to a particular climate-related problem. Faced with such claims, the defendants—or rather, their expensive lawyers—can be expected to relentlessly challenge claims of scientific causation. This, in turn, could trigger a massive courtroom battle over climate science, complete with dueling experts delivering conflicting testimony across a vast gulf of charts and graphs. Try imagining global warming’s equivalent of the Scopes “Monkey” Trial, and you’ll have some idea what might be coming.

So is it really coming? Well, that’s what the Supreme Court will decide.

Connecticut v. AEP was originally dismissed by district court judge Loretta Preska in New York City. She said the plaintiffs were essentially asking her to go beyond the scope of her office—“political questions are not the domain of judges,” she wrote. After all, we’re all waiting on Congress or the administration or the international community to deal with global warming, right? (Riiiiight.)

But the U.S. Court of Appeals for the Second Circuit disagreed strongly. It ruled that the question at stake was not “non-justicable political” one, and empowered the case to go forward.

So then the power company lawyers brought in the Supremes—even as the Obama administration complicated matters when acting solicitor general Neal Katay shockingly agreed with industry that the case shouldn’t go forward because EPA was taking action to deal with greenhouse gas emissions. (Admittedly, this was before the 2010 elections.)

Which brings us to the Supreme Court. Any realistic survey of the political and regulatory landscape today suggests little reason to expect that global warming is going to be dealt with by Congress (which is feeling obstructionist). As for EPA? It seems likely to be obstructed.

If both avenues are blocked, and there's no other clear climate remedy, will the Supremes really say that states being damaged by global warming can’t sue the polluters doing it?

I’m no lawyer. But you don’t need to be one in order to see that doing so would shut off a pretty important venue—the legal one—for redressing a problem the other relevant sectors (political, regulatory) aren't handling.

After all, the states suing—who didn’t want the Supreme Court to take up this case—fully admit that if EPA takes strong action to cut greenhouse gas emissions, their case goes away. But it hasn’t yet. And in the current political climate, Republicans are essentially saying, over my dead body.

So stand by. Maybe we’ll get that Scopes Trial after all. 

June 22 2010

18:16

June 16 2010

16:28

It's Raining Lawyers in the Gulf

A cavalcade of lawyers are homing in on what is shaping up as one of the worst environmental disasters in the nation's history.

April 12 2010

17:28

April 3rd-10th: Environmental News Wrap-Up


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