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April 02, 2007
A Big Day for Enviros
Hi everyone! I'm psyched to be able to blog here, and to start on what to me is a really great legal day.
So how about that Supreme Court? And its decision in the two Clean Air Act cases today? The blogosphere's been all over this already, but I have to say, as someone whose first Supreme Court amicus briefs (team-written with some very wonderful colleagues, I should say) were in these two cases, today was incredibly satisfying.[*] (Or, in more cas-speak: OMGWOW.)
One thing I've been trying to emphasize in my classes, though (perhaps to the frustration of my students) is that litigation is not the end all and be all. And these cases illustrate that. The Supreme Court's decision in the global warming case, for example, is merely a remand back to the EPA to consider the petitioners' request for a rulemaking--albeit one taking into account the Supreme Court's guidance in Mass v. EPA. The EPA, therefore, could conceivably still reach the same decision on remand, albeit with more legally defensible reasoning. The PSD (Prevention of Significant Deterioration) case involving Duke Energy also involves a remand, and allows the lower court, on remand, to consider whether EPA's allegedly inconsistent positions on this issue is "retroactively targeting twenty years of accepted practice."
My anticipatory frustration is that although what happens next is as much a part of the whole story as the Supreme Court proceedings, there will be somewhat less press coverage of those later administrative (and political) proceedings. This is not to blame the press, really. I mean, it's reflective of legal teaching, even, where the focus is more on the individual court "cases," and less on the overall outcome (regardless of where the outcome "arises"). Hell, I see this in administrative law, where students are a lot more excited about reading current individual cases, than reading draft rulemakings and the comments made about them.
So I guess this is just a rambly way of getting to a question: how does one effectively "teach" the interaction between individual case decisions, administrative decisions, and broader societal politics? I don't want to make my classes into any sort of poli sci/public administration class, and certainly couldn't do effectively even if I wanted to. Yet I also believe that if we're training students to advocate as effectively as possible for their clients, then we as educators should give them practice in thinking beyond strategizing about individual cases.
[*] A short recap: In Massachusetts v. EPA, the Supreme Court held that the EPA did have the authority to regulate greenhouse gases, and required it to re-review the plaintiffs' request for a rulemaking. According to the Supreme Court, "Under the Act's clear terms, EPA can avoid promulgating regulations only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do." And in Environmental Defense Fund v. Duke Energy, the Supreme Court upheld the EPA's regulations requiring permits for changes in power plants that lead to an annual increase in emissions, rejecting Duke Energy's argument that permits can only be required when the changes lead to an increase in the hourly rate of emissions.
Posted by Steph Tai at April 2, 2007 11:16 PM
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Comments
Given the zillions of categories we have on the blog, I'm amazed that we forgot to include one for Environmental Law. I just added one.
Posted by: Daniel J. Solove at April 2, 2007 11:58 PM
Thanks! I erased the p.s. :) I may also beg you at some point to add a category for agricultural law, the legal area I've been trying to explore more of these days.
Posted by: steph at April 3, 2007 12:01 AM
I'll create a category for agricultural law now.
Posted by: Daniel J. Solove at April 3, 2007 12:07 AM
Seems like the detainee/Guantanamo cases are a great place to start . . . to talk about "the interaction between individual case decisions, administrative decisions, and broader societal politics?"
Posted by: Venkat at April 3, 2007 02:40 AM
A similar point is how the ability to negotiate a good settlement for one's client is often times more important than a bundle of "litigation skills." Of course they work together--the better the facts one uncovers during the discovery, the greater leverage during settlment, but the legal world at large probably doesn't sufficiently emphasize the ability to negotiate and work with people.
Posted by: David at April 3, 2007 09:44 AM
Great post. I tend to assign my admin students some of the very few journalistic pieces that manage to emphasize the "follow up" points you've made--i.e., the way in which the critical decisions can be made long after the big court cases, by administrators acting under the radar of everyone but the trade press.
Here are a few such articles; I'll try to add more precise cites later:
1) Bruce Barcott, Changing All the Rules: Students are consistently astonished by the radical revision of environmental policies detailed in this piece:
http://www.nytimes.com/2004/04/04/magazine/04BUSH.html?ei=5007&en=7ed0c603991e9be9&ex=1396414800&partner=USERLAND&pagewanted=all&position =
Here are some of the most interesting parts:
"On March 18, 2001, Joseph Kelliher, a top assistant to Energy Secretary Spencer Abraham, e-mailed Dana Contratto, an energy-industry lobbyist. ''If you were King, or Il Duce,'' Kelliher wrote, ''what would you include in a national energy policy . . . ?''
***
Bush's E.P.A. appointees left one crucial detail out of the final report [on NSR]. They said they were still working on a final revision of N.S.R. having to do with the often contested definition of "routine maintenance." The agency published its proposed rule in the Federal Register but left the crucial percentage -- the one ... E.P.A.'s enforcement office had suggested setting at 0.75 percent -- unspecified.
***
[When the decision was finally made,] utilities would be allowed to spend up to 20 percent of a generating unit's replacement cost, per year, without tripping the N.S.R. threshold.
In other words, a company that operated a coal-fired power plant could do just about anything it wanted to a $1 billion generating unit as long as the company didn't spend more than $200 million a year on the unit. To E.P.A. officials who had worked on N.S.R. enforcement, who had pored over documents and knew what it cost to repair a generator, the new threshold was absurd. "What I don't understand is why they were so greedy," said Eric Schaeffer, the former E.P.A. official. "Five percent would have been too high, but 20? I don't think the industry expected that in its wildest dreams."
2) Amy Goldstein and Sarah Cohen, Bush forces shift in regulatory thrust, here:
http://www.washingtonpost.com/wp-dyn/articles/A1315-2004Aug14.html
[First of a three-part series.]
3) Charles Peters, Eternal Washington:
http://www.cjr.org/issues/2002/5/wash-peters.asp
And the key quote:
"One of the reasons for the failure is the media's overall inattention to government outside the glamour beats — the White House, Congress, and the Supreme Court, as well as a few executive branches, including the Pentagon and the State Department. Most of the government is pretty much ignored except by specialized newsletters that charge $1,000 or more a year for reporting details that rich individuals and corporations need to know: the latest tax loophole or how to bid for a Pentagon contract.
"Unfortunately, the agencies overlooked by the regular press are ones that have tremendously important roles in our lives — agencies responsible for the economy, medical care, our children's education, the safety and efficiency of transportation, protecting workers' health and safety, making sure taxes are collected fairly and efficiently and protecting the environment (see "Invisible Agencies," page 57)."
Posted by: Frank at April 3, 2007 07:07 PM
