Remembering Rachel Carson
Earth Day seems an appropriate time to recall past leaders in environmental thought. Few have played a greater role in the development of U.S. environmental law than Rachel Carson (1907-1964), whose books did much to spark the environmental movement. It is good to hear that her books have been reprinted as ebooks by Open Road Media in time for Earth Day, seventy years after she published her first book. I still remember reading The Sea Around Us and Silent Spring whe...
CONTINUE READINGThink Tanks, Advocacy Tanks, and the Kleiman Rule
Dan is absolutely right to distinguish between real think tanks and what I called "fake think tanks" (and what he calls, more generously, "advocacy tanks."). But what we need is some criterion for distinguishing the two: one key move of the modern Conservative Movement has been to dismiss all study as simply being the product of ideology. No wonder that Josh Marshall, in a wonderful piece, described George W. Bush as "The Postmodern President." So how does one jud...
CONTINUE READINGSolicitor General Katyal Flunks Supreme Court History
At least he did at the oral argument in Connecticut v. AEP yesterday: [Lawyer for the state plaintiffs Barbara] Underwood, pressed to cite past court cases that might show this particular lawsuit could work in court, had no close parallels to rely upon. Chief Justice John G. Roberts, Jr., had pressed her to come up with an answer to Solicitor General Katyal’s argument that the Court, in 222 years, “had never heard a case like this before.” Uh -- that's an easy ...
CONTINUE READINGThink Tanks versus Advocacy Tanks
Don't get me wrong. There are real think tanks like RAND or RFF that produce significant reports on environmental policy issues. I always take the conclusions of these experts seriously, because they're very competent and don't have an axe to grind (unless you count being overly attached to economic analysis as a bias.) Then there are places like the Heritage Foundation, American Enterprise Institute, and Cato. Their basic function is to produce advocacy pieces fo...
CONTINUE READINGSaving Public Nuisance
I agree with Rick's take on the oral argument in Connecticut v. AEP -- in fact, so much so that I predicted it three years ago! But if the Supreme Court overturns the Second Circuit on the viability of a federal common law claim, that actually makes the viability of state common law claims stronger. Merely because the Clean Air Act displaces federal common law hardly implies that it pre-empts state common law. Indeed, the absence of a federal common law claim now op...
CONTINUE READINGDamage Control for the States: Predicting the Outcome in AEP v. Connecticut
Yesterday I previewed Tuesday's oral arguments in the U.S. Supreme Court's American Electric Power v. Connecticut case, and two of my Legal Planet colleagues have already posted comments on certain aspects of those arguments. But let me cast discretion to the wind and predict the outcome of the case. Actually, it's not that difficult a prognostication: the plaintiff states, City of New York and private land trusts are going to lose. From their questions and comments dur...
CONTINUE READINGConnecticut v. AEP: The Judicial Power of the Purse
That's not my phrase: it's Jerry Frug's. But it applies here. Rhead reports that in the Connecticut v. AEP argument, Justice Breyer, setting up one of his classic hypotheticals, wanted to know why a judge should not impose a $20-a-ton carbon tax as a judicial remedy. (Answer: because he can’t.) It's not clear to me why Breyer thinks that a judge can't do this. Recall that Connecticut v. AEP is formally a nuisance case. Damages are a standard remedy in nuisance...
CONTINUE READINGReading the Mary Nichols (carbon) tea leaves
It's undoubtedly dangerous to try to read too much into short media quotes. But Mary Nichols, the chair of the California Air Resources Board, is in a better position than most to judge (and to influence) the political winds on the future of the State's cap-and-trade program. Here's her latest public statement on the issue, made during an appearance last week at a climate conference in LA (and reported by KPCC here, with audio, and also by the LA Times here):...
CONTINUE READINGAEP v. Connecticut oral argument
This morning, the Supreme Court heard 75 minutes of oral argument in AEP v. Connecticut. My fellow blogger, Richard Frank, already gave us a preview of the arguments. SCOTUSblog has a nice recap of what happened this morning. I would just like to highlight a few points from the oral argument. First, the Justices seem hesitant to throw out the public nuisance remedy completely, but are uncomfortable with the complexity of a judicial remedy in this type of case. Justice...
CONTINUE READINGPreviewing the Supreme Court Oral Arguments in AEP v. Connecticut
On Tuesday the U.S. Supreme Court hears oral arguments in the only environmental case on its docket this Term: American Electric Power v. Connecticut. At issue in this critically important climate change case is whether a coalition of states, New York City and several private land trusts can pursue a federal common law nuisance claim against the owners and operators of massive Midwestern, coal-fired power plants that collectively generate an estimated 650 million tons of...
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