Kind of what I was thinking, too...
Posted on 04/19/2011 12:31:08 PM PDT by library user
Key U.S. Supreme Court justices signaled Tuesday they are inclined to give deference to the Environmental Protection Agency rather than the courts on the issue of major power companies' greenhouse-gas emissions.
The justices' comments indicate a major climate-change case, American Electric Power Co. v. Connecticut, will be dismissed by the high court.
"Congress set up the EPA to promulgate standards for emissions, and the relief you're seeking seems to me to set up a district judge, who does not have the resources, the expertise, as a kind of super EPA," Justice Ruth Bader Ginsburg said Tuesday.
The Supreme Court heard oral arguments Tuesday in the case, which has pitted five major power companies and the federally operated Tennessee Valley Authority against six states, New York City and a handful of private land trusts. The states are suing the companies for emitting massive amounts of greenhouse gases, arguing the emissions harm U.S. citizens.
The case has entangled the Obama administration, which, in defending its Tennessee Valley Authority, has also come to the defense of some of the country's major coal-burning power companies, including Xcel Energy and Duke Energy. But the administration is not arguing against limits on greenhouse-gas emissions, it is instead calling on the court to give deference to the EPA's pending climate regulations.
At issue is whether states can show sufficient harm to force major power companies to reduce their greenhouse gas emissions; whether the states’ lawsuit is overtaken, or “displaced,” by EPA climate regulations; and whether the courts should weigh in on the issue at all, instead leaving it to the executive and legislative branches of government.
The case deals with a series of big-picture issues that have come to the forefront of U.S. politics as the EPA begins to implement climate rules and Republicans and some Democrats in Congress seek to block or limit the agency’s authority to do so.
The case comes after the Supreme Court ruled in 2009 that greenhouse-gas emissions could be regulated under the Clean Air Act if EPA found they endanger public health and welfare. The high court's decision formed the underpinning for its authority to issue climate regulations.
During questioning Tuesday, many of the justices asked about whether EPA climate regulations have displaced the need for the courts to limit greenhouse-gas emissions on behalf of the states.
Ginsburg suggested the court would be stepping on the toes of the EPA by limiting power companies’ greenhouse-gas emissions.
“You want the court to start with the existing sources, to set limits that may be in conflict with what an existing agency is doing,” Ginsburg said. “Do we ignore the fact that the EPA is there and that it is regulating in this area?”
Other justices highlighted the difficulty of connecting greenhouse gases to any individual power company once they are emitted into the atmosphere.
“What percentage of worldwide emissions, every one of which I assume harms your clients, do these five power plants represent?” Chief Justice John Roberts asked.
Justice Elena Kagan raised concerns about the enormity of the case, arguing that the states are asking the court to weigh in on a major policy issue.
“[M]uch of your argument depends on this notion that this suit is really like any other pollution suit, but all those other pollution suits that you've been talking about are much more localized affairs — one factory emitting discharge into one stream,” Kagan said. “They don't involve these kinds of national/international policy issues of the kind that this case does”
And Justice Samuel Alito asked about the potential for the case to set a precedent that would lead to future lawsuits resulting in a series overlapping court-ordered emissions standards.
“Even if you won and the district court imposed some sort of limit, would there by any other obstacle to other plaintiffs bringing suits and another district court issuing a different standard?” Alito said.
The Obama administration has gotten ensnared in the case, as the government-operated Tennessee Valley Authority is also being sued by the states.
Gen. Neal Kumar Katyal, acting solicitor general at the Department of Justice, representing the Tennessee Valley Authority, argued Tuesday that the case should be dismissed because it is nearly impossible to directly link greenhouse-gas emissions back to the five power companies in question.
The case, Katyal argued, is one of the broadest that has ever come before the Supreme Court.
“In the 222 years that this court has been sitting, it has never heard a case with so many potential perpetrators and so many potential victims, and that quantitative difference with the past is eclipsed only by the qualitative differences presented today,” Katyal said.
Climate change is a global issue that must be addressed on a broad scale, Katyal argued.
“The very name of the alleged nuisance, global warming, itself tells you much of what you need to know. There are billions of emitters of greenhouse gasses on the planet and billions of potential victims as well.”
Paul Keisler, representing the petitioners Tuesday, argued that the case should be dismissed because the states are calling on the courts to make a policy determination about greenhouse-gas emissions.
“The states ask that the courts assess liability and design a new common law remedy for contributing to climate change, and to do so by applying a general standard of reasonableness to determine for each defendant, in this case and in future cases, what, if any, its share of global reductions in greenhouse-gas emissions ought to be,” Keisler said.
“That would require the courts not to interpret and enforce the policy choices placed into law by the other branches, but to make those policy choices themselves.”
But Barbara Underwood, solicitor general for the state of New York, representing the plaintiffs, argued that states should step in to work to reduce greenhouse gas emissions while the EPA’s climate regulations are being developed.
“This case rests on the longstanding fundamental authority of the states to protect their land, their natural resources and their citizens from air pollution emitted in other States,” Underwood said.
While I disagree that the EPA has any Constitutional mandate - if Congressional law sets them up as an arbiter of interstate commerce between states such that regulation is in place that obviates the need for a State to sue a private concern producing energy in a different state.
It does buy into the EPA having a legitimate function - but that is the domain of Congress and they seem quite willing to legislate oversight/control of their powers to the Executive branches.
It also seems to buy into the idea that there is a legitimate “harm” that can be shown from release of greenhouse gas when it hasn't been shown that temperatures are actually increasing (hide the decline) OR that increasing temperatures harmed anyone (Medieval warm period).
But yes: although the journalistic slant was pro EPA and Ginsburg - the decision arrived at stopped liberal idiot litigation aimed at taxing/fining energy production in different states.
This is an interstate commerce concern in my mind: an ACTUAL one - not a hypothetical - it could be - a crop grown and consumed in one state has a tangential effect on the price of the crop that IS involved in interstate commerce - and thus is subject to federal legislation, etc.
Keeping in mind that this article consists of speculaton as to outcome, based on questions, comments, and, one presumes, facial expressions of some of the SC Justices during oral arguments, there is a real existential danger here —
Depending on how the order of dismissal is worded, it is possible that the precedent, or even principle, may be set that all courts (representing Due Process and The Rule of Law) must defer to the EPA (unelected, unaccountable, arbitrary, Bureaucracy) in all matters environmental - no matter how vaguely related....
Won’t happen as you say unless GOP candidates keep attacking Obama until voters can’t wait to oust him. Won’t happen if we buy into the “civility” and “bipartisanship” mantras which are really nothing more than a enforced political correctness at the expense of facts. When we give people like Obama the sort of respect —indeed deference— that they don’t deserve, they survive and flourish no matter what they do to the country. When they are instead confronted at every opportunity, they start to self-destruct. No rest for the weary.
Longer. The next president will need congress’s help in order to bring the EPA under control. Don’t count on that happening, no matter what party is in the majority.
You gotta fire a ‘warning shot’. But my aim ain’t as good as it used to be.....;^).....
You gotta fire a ‘warning shot’. But my aim ain’t as good as it used to be.....;^).....
Not really true.
Those bureaucrats were sent there by Congress, their powers were delegated by Congress, they are carrying out laws passed by Congress, and Congress could pull the plug tomorrow, or any day after tomorrow.
The real revolution will not occur until the current form of government falls and is buried under the debris of the US Dollar. That is nearly inevitable, given that people in power are willingly ignoring this problem and making it worse instead. The new currency of the United States will be denominated in inches.
The POTUS can control the EPA by firing and hiring, but don't count on GOP candidates, even if elected, to change the "greenhouse gas" nonsense, unless we hold their feet to the fire.
We have seen the enemy, and he is us.
Spot on.
The president doesn’t have final authority over the EPA. If he tried to exercise that kind of authority, expect talk of “impeachment” next. The same laws that prevent “spoils system” politics protect career bureaucrats.
the issue was not even a matter of Executive branch powers,
It was a civil matter wherin the party bringing suit should have been called by the court to bring proof that CO2 causes harm
instead of the Supreme Court serving justice, it was handed directly to the long arm of the EPA's executive branch for tyrannical unjust enforcement
Exactly. I we say we do not want judges legislating from the bench then this is what we get.
BTW - Our founders set up the judiciary to be independent but they wanted one that was deferential to the two other branches. Things are working out as Madison planned.
Ultimately it is up to us. Thank goodness.
Amen, brother.
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