It's that time of year again. The Supreme Court is done with arguments and will be spending the next six weeks issuing opinions (as well as finalizing the cases to be heard this fall). This year, the Supreme Court heard arguments in seventy cases. So far they have decided forty cases and have thirty remaining. We will probably get 3-4 opinions per week for the next three weeks at which point the remaining cases will come in a flood (including most of the major cases not yet decided).
Most of the cases from last fall have been decided. The biggest case remaining (probably being written by Chief Justice Roberts) is in many ways a small case that has become much bigger than it should be. The case is Bond v. United States back for a second time at the Supreme Court. The case involves a poisoning, but the local federal prosecutor decided to charge a federal offense under a statute implementing the Chemical Weapons Convention. By opting to charge a federal offense (rather than letting the state prosecutors handle the case as a state offense), the federal prosecutor has created a major dispute over whether a the US can use a treaty to expand federal power. The easy out in the case would be for the Supreme Court to narrowly interpret the statute to not reach the charges in this case. The other two cases from the fall involve the ability of a child to get residence status under U.S. immigrations law if that "child" becomes an adult while on the waiting list and the scope of the federal authority to regulate casinos run by Native Americans if those casinos are located outside of tribal land.
The winter cases (January and February) are only half-decide (ten cases remaining out of nineteen arguments). Because of the number of cases remaining, it is too soon to tell which justices might have these cases. There are still three big cases from January. The biggest is the Noel Canning case on the scope of the recess appointment power. Whichever side wins may well regret it when, at some point in the future, control of the White House flips. For now, conservatives are arguing that the President can only fill a vacancy during the recess between the end of the session in the fall of one year and the first meeting of the following session in January and only if the position becomes vacant during that recess. Also outstanding from January is a case on the Massachusetts law creating a protest-free bubble around abortion clinics and mandatory unionization for home health care providers in Illinois (for the purpose of Medicaid reimbursements.
The big case from February is the greenhouse gas case. As noted in previous posts, the Supreme Court rejected most of the challenges to the regulations and is only considering a limited technical issue of statutory interpretation -- does the finding that these gases are pollutants for the purpose of the sections of the Clean Air Act governing motor vehicles also mean that they are pollutants for the sections covering power plants. The other major case from February is a securities fraud case involving Haliburton (a/k/a the source of all evil).
Today the Second Circuit issued an opinion in a case involving several states and organizations against the biggest utilities in the country. In this case, the plaintiffs are alleging that, by producing excessive carbon dioxide and other greenhouse gases, these utilities are creating a public nuisance. The district court had dismissed the case on several grounds of which two are important here. First, the district court found that the issue of global warming was a political question. Second, the district court found that the Clean Air Act preempted traditional state and federal common law claims like public nuisance.
The Second Circuit reinstated the case. In particular, they found that the issue was not a political question just because the political branches might at some point choose to pass or not pass legislation on the issue. They also found that the Clean Air Act was not specific enough to clearly preempt common law claims. They also found that the regulations being enacted in response to the U.S. Supreme Court decision of two years dealing with greenhouse gases and motor vehicles were still in an early stage and, presently, only covered motor vehicles, not stationary sources (like power plants). As such, these regulations also do not yet preempt common law claims.
The bottom line with both this decision and the previous decision by the U.S. Supreme Court (which all but required the EPA to regulate greenhouse gases from motor vehicles) is that environmentalists are making some progress in the courts on placing restrictions on carbon dioxide. Obviously, the judicial process is slow and there is no guarantee of a win in the end. On the other hand, in the judicial process, facts do actually matter and the evidence strongly favors tougher regulations.
As such, both environmentalists and the utilities have to be asking which side loses if climate control legislation fails. My personal belief is that legislation might produce a more workable scheme than a court decree will. However, a court decree could also impose tougher rules than politicians would be willing to support. If utilities do not tell the Republicans that they need to be at the table, the failure of climate change legislation could ultimately backfire on the utilities.
Last week, the House introduced its version of legislation to deal with global warming. As of now, the bill is apparently being referred to as Waxman-Markley after its two sponsors.
Today, President Obama is rumored to be announcing new fuel efficiency standards for the automotive industry.
Based on news reports, both are guaranteed to be major disappointments for environmentalists who were hoping for major action to fight global warming this year.
While Waxman-Markley will create a cap and trade system, the current draft has two major flaws. First, it puts off the requirements for any major cuts in greenhouse gases until after 2016. In fact, it allows greenhouse gases to increase slightly during that time frame. It is only in the distant years that the real cuts may hit (assuming that a future congress does not push them back further). Second, it appears to allocate most of the allowances. While such policies make it easier to enact cap and trade legislation, it seems guaranteed to minimize the pressure on major polluters to take any immediate steps.
An even bigger concern is that, if this is the best that the House can do, it is likely to be substantially watered down by the Senate.
The one piece of good news in the bill is that it does establish a scientific review process of the evidence on global warming and allows a panel to recommend regulatory changes and the appropriate agencies to adopt those changes. That creates a chance that after the first review in six years or so that the targets will be appropriately adjusted to speed up the process.
The new fuel efficiency standards are equally disappointing. While they will represent a dramatic increase over the next 8 years to a new standard of 42 miles per gallon, that goal is achievable now. This year's new Toyota Prius Hybrid will get 50 miles per gallon. As in the past, the goal seems to be to create a standard that is easy to meet whether than one which will encourage domestic automakers to get ahead of the global curve.
Civil rights are a big deal issue for me: I'm in favour of them. I'm in favour of choice. And I stand by that even when people do things that I wouldn't do. I draw the line at things that adversely impact others. When I post on these things, people who comment often disagree if the "thing" is something they don't like. Smoking cigarettes tends to be unpopular, as do fat people. Some people aren't cool with gay people.
One thing that seems to be a sacred cow (no pun intended) is eating red meat. People seem to think this is okay, even if they don't consume it. They see it as a personal choice, just as vegetarianism is.
I'm a vegetarian, and have been for the vast majority of my life. My dad says that he took me to the zoo when I was three, and I made a connection between the big brown eyes in the cages, and things on my plate, and started refusing anything that didn't grow in/on the ground. I have no reason to disbelieve him. I am a slightly hypocritical vegetarian: my dog eats meat, and I buy it for her. In addition, I like Asian food, and am not 100% convinced that everything every restaurant has ever served me is completely devoid of animal products. Just a hunch. But generally yes, I'm a vegetarian.
I am a vegetarian for ethical and moral reasons. I don't want anything to die so I can eat it. I have watched a mother deer mourn her offspring, hit by a car, and suffering. I have read the journal articles on how cows know one another. I've heard the "but lettuce is alive" argument, but know it to be specious. Issues of health and environmental concerns have never entered into my personal decision to eschew animal flesh. Further, I am not an activist on the meat front.
But I read an article this morning, and I'm thinking maybe I do want to become somewhat more activist about it. The article related findings of a 10-year study on over half a million adult Americans on meat and mortality, conducted by the National Cancer Institute. Of note:
Extrapolated to all Americans in the age group studied, the new findings suggest that over the course of a decade, the deaths of one million men and perhaps half a million women could be prevented just by eating less red and processed meats.
That's the health part. If you read the article, you'll see that they are not even talking about large amounts of meat.
And now for the planet part:
Anyone who worries about global well-being has yet another reason to consume less red meat. Dr. Popkin, an epidemiologist at the University of North Carolina, said that a reduced dependence on livestock for food could help to save the planet from the ravaging effects of environmental pollution, global warming and the depletion of potable water.
“In the United States,” Dr. Popkin wrote, “livestock production accounts for 55 percent of the erosion process, 37 percent of pesticides applied, 50 percent of antibiotics consumed, and a third of total discharge of nitrogen and phosphorus to surface water.”
I'm not saying you should quit eating animal products, I'm just saying when you line up behind saying no to smoking, no to fat people, no to transfats, and continue down the line...eventually we'll get to something you like.
It is expected that later this year, Congress will take up (and probably enact) some form of "cap and trade system" for carbon dioxide. The essence of a cap and trade system is a business will buy/get permits from the government to emit carbon dioxide. Once you have the permit, if you have excess permits, you can sell them to somebody else who needs them. If you don't have enough permits, you will have to buy permits from somebody else or face some consequence for reaching/exceeding your limit. While the sentiment seems to be to pass a "cap and trade" system, the devil will be in the details. There are major sub-issues to be decided that will impact whether or not it will work and whether or not it can pass.
1) Level of Carbon Dioxide Permitted -- At one level, this issue is the most important issue on the table. It is accepted, at least among those supporting cap and trade, that we need to reduce the level of carbon dioxide being released into the atmosphere in this country over time. The bigger questions is by how much and how quickly. We have seen in other areas that, when deadlines for major changes are too quick, business will come back and try to get extensions. (There will probably be some of this anyway but, if the targets are realistic and there are excess permits available for purchase, they are less likely to succeed.) The likely way that these targets will be reached will be by permits of different length. Sort of like the bond market, there will be permits that expire in 20 years, in 15 years, in 10 years, and in 5 years.
2) What Uses Need a Permit -- This issue is probably the second most important issue. Most carbon dioxide currently being emitted comes from either energy production (primarily electricity) or energy consumption (primarily gasoline). You can reduce carbon dioxide both by encouraging producers to switch to cleaner alternatives and by reducing consumption. So do you include some incentive to switch to more fuel efficient energy consumers by requiring some permit based on estimated life time consumption for things like light bulbs, cars, computers, tvs, new homes, etc. or do you just hit the permits on the businesses that actually produce carbon dioxide. And how does gasoline fit into this mix?
3) How are Permits Allocated -- There are basically two options for the original allocation of permits -- government grant or auction of permits. From the point of view of businesses, they would rather a government grant. That limits the original expense of imposing the system and takes speculators out of the initial system. However, an auction is a way to raise revenue for the government and gets government out of selecting the winners and losers in the initial allocation. Right now it seems that the Obama Administration would rather an auction.