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.