Posted by: Dr Churchill | April 25, 2011

Supreme court hears climate change case that affects everybody

Climate Change Supreme Court
The Obama administration and environmental interests are on opposite sides of a Supreme Court case over the ability of states to regulate CO2 emissions. Somehow the Feds are on the side of evil, right next to Power & Utility energy companies, the largest CO2 emitters responsible for upwards of 60% of all of our emissions globally. Weird…

Really weird. Yet, understandable when seen through the political and strategic lens. Even a drunk observer can explain away this as a turf war. But this won’t do. Far too simplistic for my taste. For war it is but of a different kind.  War for the submission of the immoral polluters, their sympathizers, the fringe tea partyers, and their brethren. A war to knock some sense in the assorted gay boy, and cross dressing polluters with special selfish interests and other old timers, who make up this Merry band of thieves and crooks. Ignoramuses, harking back to the simple days of yore when you could pollute all you wanted and where the open sewers run in the middle of the streets,  in packed cities akin to ghettos who were disease incubators. Cities where black death or bubonic plague could break out any day of the week. Industrial era cities full of soot, pollution, CO2 and people rife with asthma, tuberculosis, all germs and viruses. All of the little critters, unseen by man and disbelieving their existence… yet deadly enough to wipe out scores of men in every outbreak. Still back then even when the germs’ existence was discovered, it was impossible to pass legislation protecting people from their scourge.

Same like it is today when it is impossible to pass reasonable Climate Legislation in the US and we have to rely upon the court to sort this out.

And on the other side are the environmental interests along with eight US states and New York City, conservation land trusts and Climate change groups such as Sierra Club, NRDC, the Environmental Parliament and the Audubon Society.

What they all want is the Right to be able to sue large electric Power & Utility Companies and force power plants in 20 states of the United States to cut down their emissions for reasons of public health…

This particular law suit was filed in the dark years of Cheney’s bush in 2004, and it really looked like this might be the only way to force carbon emission reductions as a way to act on global warming. Because the Cheney-Bush administration and the Republicans in charge of Congress at the time had disemboweled the EPA’s authority to regulate greenhouse gases and the toothless agency was in no mood to fight large polluters.

Still the bright federal judges at the US federal courts long have been active in state level and intrastate disputes over pollution. But those cases typically have involved a power plant or sewage treatment plant that was causing some easily identifiable harm to people, and property downwind or downstream of the polluting plant. Something like the Erin Brockovich case where
Pacific Gas and Electric were found responsible for the town of Hinkley California groundwater contamination, that caused massive cancers amongst all the residents…
The case alleged contamination of drinking water with hexavalent chromium, also known as chromium (VI), in the southern California town of Hinkley. At the center of the case was a facility called the Hinkley Compressor Station, part of a natural gas pipeline connecting to the San Francisco Bay Area and constructed in 1952. Between 1952 and 1966, PG&E used hexavalent chromium to fight corrosion in the cooling tower. The wastewater dissolved the hexavalent chromium from the cooling towers and was discharged to unlined ponds at the site. Some of the wastewater percolated into the groundwater, affecting an area near the plant approximately two miles long and nearly a mile wide. The case was settled in 1996 for US $ 333 million, the largest settlement ever paid in a direct action lawsuit in US history.

Well Done… but that was then.

And this is now, and the States now want that right to act to control greenhouse gases and to be able to sue in Federal Court and thus bring perpetrators to justice or to the straight and narrow path of responsibility.

But global warming, is a far more complex problem…

A problem that transcends borders, oceans, territories and ideologies.

Arguments back and forth abound… and the Supreme Court judges will hear them and decide in wisdom.

Pollution knows no boundaries and all habitat systems are connected — so when ”it leaks here it leaks everywhere”….

That’s what was on the minds of the U.S. Supreme Court the other day, as the justices were hearing this case that will decide whether individual federal judges should be allowed to rule on lawsuits affecting the climate of the entire planet.

And although it would be really satisfying to hear the Supreme judges bring their gavel down on a cease-and-desist-destroying-the-planet order, the justices already have indicated that they preferred a broader approach, specifically leaving it up to the Environmental Protection Agency. And that truly would be the proper approach… in an ideal world where the separation of powers was inviolate and where the EPA worked well. But here and now we are far from ideal. With Obama’s climate czar gone, with the Senate climate bill dead and buried, and with the EPA disemboweled, we are far from it. And with the US Chamber of Congress, the Electricity utility lobby groups and the Energy companies and the Koch Bros running amok like rabid dogs attacking any chance of climate legislation and like King Herod, killing the first born of any Senator even hinting at this, we are in trouble. And with the Corporate bodies’ coffers influencing public policy same as an individual voters’ purse, albeit with unlimited cash drawing rights to be thrown towards their cause, we are seeking the Court’s protection.

And because the EPA itself is spectacularly hamstrung we now need the Supreme court to come to the aid of the people.

Yet during the preliminary hearings, the line of questioning from the justices did not point to any easy conclusions about how they might rule in the case. This pivotal case, which pits the five major power companies against the coalition of states, is eerily similar to the beginnings of the Big Tobacco lawsuits. But several Supreme Court Justices seemed skeptical that a federal court, rather than the Environmental Protection Agency, should be the first and the best venue to address the complex questions raised by the case of anthropogenic Climate change caused by our CO2 emissions.

But because the fundamental issue — whether and how to regulate carbon dioxide pollution — has also tied Congress in knots, and it’s now pending before the EPA;  gives rise to the belief the Supreme judges will decide to allow States and the Federal Courts to control CO2 emissions. And further because the Obama Administration – now on the side of the polluters – signaled in 2009 that federal environment officials would draft regulations aimed at reducing carbon dioxide emissions, yet has not delivered anything on that front, will sway the judges to rule in favour of the States’ position and accept their arguments. Because time is running out to act.

And really it was impatience with the pace of the EPA’s moves to regulate greenhouse gas emissions from factories and power plants that led a group of three conservation groups, six states and New York City to file suit against some of the nation’s biggest emitters of carbon dioxide. They want them to cut down on the amount of climate-changing substances they emit before the climate balance is unalterably tipped.

On the other side of the case, arguing the EPA should be in charge, were not only the outfits being sued — four energy corporations and the federally owned Tennessee Valley Authority — but also the Obama administration. These seemingly strange bedfellows are on the right side of this issue.

U.S. Solicitor General Neal Katyal said: “The court has never heard a case with so many potential perpetrators and so many potential victims.”

Remedies for climate change will of necessity involve a broadly based political and strategic approach that will touch everyone and certainly many more things than just power & utility plant emissions. Doing it correctly, in a way that not only works but that also wins maximum buy-in from both the perpetrators and the victims, will mean a balance of rules, market-based solutions, taxes, R&D and changes in lifestyle across the spectrum of the public and private sectors, producers and consumers, incentives and penalties. And that’s where State power trumps all else. Remember it was the State’s Attorney Generals that sorted out the Tobacco companies and forced them to a giant settlement to cover the health damages they were flinging on to the people and the state budgets. Same issues of health exist now and the states are best able to sort them out.

Still the case is riveting, with the combatants being large and on one hand we have the power and energy companies which argue that any solution must be comprehensive — meaning it must take another couple of decades or centuries of research and study because the science of a warming planet is inconclusive and at any rate we have skeptics… And even if we were to decide on a solution it must involve something like a national carbon tax — which they know, will never happen. And on the opposing side we have the states with the Federalist powers and the Civil society which claim that in the interest of the Peoples, the court must act as the ultimate venue of last resort and an arbiter of Health & Safety for the people’s well being.

Still both groups of claimants would agree that: No court-ordered change alone would have any massive effect on climate change. Especially since ay decision is only localized in  these United States…

Because this is an issue that is of worldwide nature and causation. It’s the result of hundreds of years of emissions all over the world, and by rights it should be handled in an international forum…

The defendants in the suit are mainly the following: Cinergy Co., now part of Duke Energy Corp. of North Carolina; Southern Co. Inc. of Georgia; Xcel Energy Inc. of Minnesota; and the federal Tennessee Valley Authority. The TVA is represented by the government and its views do not precisely align with those of other companies.

Eight states initially banded together to sue. They were California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont and Wisconsin. But in a sign of the enduring role of partisan politics in this issue, New Jersey and Wisconsin withdrew this year after Republicans replaced Democrats in their respective governor’s offices.

Another complication is that the administration and the companies may be on the same side at the Supreme Court, but the power industry is strongly opposing climate change regulation by the Federal government and EPA as well vehemently. Specifically the Southern Co. is a vocal supporter of GOP legislation to block the EPA from acting and their industry lobby is the greatest threat to EPA and the main reason along with the US Chamber of Commerce that the Republicans have gutted EPA on this compromise budget agreement currently funding the US government.

It’s really a Janus act. A two-faced lie for the power & utility companies to come into the Supreme Court and say everything is well because the EPA is going to act, and there is no need for state action and then to go out again and block EPA at every turn…

But there is hope. Because usually the Supreme Court doesn’t like liars and it’s BS detector is set on high.

Still the key point is that judges should not make environmental policy.

This has important implications for jobs. If you raise energy costs in the U.S., does that lead industry jobs to go elsewhere and if it does, do you get the same emissions, just from another country?” Comer said. “These judgments are properly made by elected officials.”

Methinks that no single lawsuit, before the most learned of judges, is likely to achieve that goal. It will be ultimately up to the EPA, which is both national in jurisdiction and armed with the necessary expertise, to tackle that task.

But now even the EPA will have limited power to really face this problem without tougher international agreements. And even that agency will be at the mercy of White House meddling, congressional funding and court oversight. Still to remove the burden from the Feds and as the fight against big tobacco demonstrated we are better armed at the State level to deal with this.

But the broadest approach possible is also necessary when dealing with problems that so easily drift across state lines. And if the States show leadership, the big companies will settle. Mind you the beast here is the $ 75 Trillion combined value of the global Power and Utility companies. It’s not an easy beast to intimidate in order for it to do the right thing. You know they have also scared off the United Nations Climate Officials and have either bought off their acquiescence or they brow beat them to submission. So the EPA and the White House are easy pickings for them too.

But according to James – fearing God – Madison, the State’s federal power can do just that.

Because when you break the problem down to the small constituent parts — like at the State level the power generators, then you can sort them out…

And you need Conservative judges to side with Madison on the issues of the Federalist papers and State rights. So this seems to be the right place, the right case and the right approach here. I remain rather hopeful we will prevail.

And the sign of the Power & Utility industry desperation is evident when it goes on to argue against Justice Sotomayor has to be recused…  Something which she did, since she had heard the case at the Federal Court level. And for that  Sotomayor, who was on the federal appeals court panel that heard the case, is not taking part in the Supreme Court’s consideration of the issue, making the Supreme Court composition of this case a radically conservative one…. Also a good thing probably, cause when the conservative Republican judges deliver a majority opinion, the industry will have no moral basis to hide behind and ideological stance anymore.

But we like radical conservative judges also because they are like us too. Am a very Conservative person on the issues of the Environment and Climate Change myself, and have full faith that the Supremes will deliver a just verdict on this issue — provided that they decide to hear it first.

It is a truly Madisonian battle and may the best side win.

The case is American Electric Power Co. v. Connecticut, 10-174.




And although the disposition of this case is anything but certain we are waiting spellbound for the good news.

For although the White House and the administration are siding with the Power & Utility Companies in urging the high court to throw out the lawsuit under the well established and time honoured legal reasoning that the Environmental Protection Agency, not a federal court, is the proper authority to make rules about climate change — the justices heard arguments that might sway them either way…

And they will again hear closing argument this coming week and receive written submissions and rebuttals.

More rests on this case than any other Environmental case the court has heard about the Environment ever. Please pay close attention and please go ahead and file ”Amicuus Briefs” when the case is decided to go forth and be heard by the US Supreme Court.

Because the court is taking up climate change as a case for the second time in four years, this is pivotal. In 2007, the court declared that carbon dioxide and other greenhouse gases are air pollutants under the Clean Air Act. By a 5-4 vote, the justices said the EPA has the authority to regulate those emissions from new cars and trucks under that landmark law. The same reasoning applies to power plants.

The administration says one reason to end the current suit is that the EPA is considering rules that would reduce carbon dioxide emissions from power plants. But the administration also acknowledges that it is not certain that Carbon limits will be imposed.

At the same time, Republicans in Congress are leading an effort to strip the EPA of its power to regulate greenhouse gases.

The uncertainty about legislation and regulation is the best reason for allowing the case to proceed, said David Doniger, a lawyer for the Natural Resources Defense Council, which represents Audubon and other private groups dedicated to land conservation.

“This case was always the ultimate backstop,” Doniger said, even as he noted that the council would prefer legislation or EPA regulation to court decisions. The suit would end if the EPA does set emission standards for greenhouse gases, he said.

The legal claims advanced by the claimants: The six states, New York City and the land trusts would be pressed only “if all else failed,” he said.

And the field of battle has giant stakes on it.

Mind you the economic stakes are big too, but on Climate Change this is the killer issue.

Based on the principle of Natural law that; he who fouls the Commons must be stopped, the moral hazard is such that the potential collapse of the ecosystems and the habitat of humans rests on the balance.

Therefore, they must be protected.

And whenever the Carbon emitters profit from endangering our health, the very same emitters have to pay…

And their carbon emissions have got to be controlled. And controlled fast…

Our Atmosphere is not an open sewer anymore.

It’s too big to fail but the power companies aren’t and their intransigence isn’t either.

Let’s help the Supreme court allow us to control them — before they throw our Atmosphere into ”bankruptcy.”

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