Trans Canada's Humpty Dumpty wrote Obama's environmental review of Keystone. Nothing unusual about it, sadly.

Brad Johnson writes that the Environmental Impact Statement giving a fairly decent review was written by, wait for it, a consultant hired for that purpose by Trans Canada, the applicant for the permit.

Conflict of interest, you say? Humpty Dumpty says a conflict of interest is what he says it is and no more, and in the best Washington DC scandal sense, my sense is that this is legal.

I should qualify that by saying I don't know federal environmental review (NEPA) law as well as California's equivalent (CEQA) law, but this would pretty much be allowed under California law, and CEQA is usually stronger than NEPA. Here I am banging on about this, nearly 6 years ago:

In most Bay Area cities, when a developer applies for a permit that requires the city to do environmental review, the developer pays a fee and the city then uses the fee money to hire expert consultants to prepare the environmental report. San Jose, by contrast, allows the developer to directly select and hire the environmental consultants who prepare an administrative draft of the environmental report. While San Jose may then modify the administrative draft, the developer-controlled draft is biased to play down the impacts. The direct expertise is in the hands of people loyal to the developers, not to the City or to a neutral evaluation process.

While most Bay Area cities have moved away from this, San Jose still hasn't, and it's still legal.  Almost as embarrassing, my own water district has the same bad policy (it's on my to-do list and we almost never issue complicated permits for private parties anyway, so there). Now under CEQA, an agency can get in theoretical trouble if it can be shown they rubber-stamped the document they received from the developer's consultants, but you know that happens anyway, and the bias will survive regardless. I'm not sure what the standard is under NEPA and whether they've met it, but given the scrutiny, they probably have.

There is another check on the developer bias - an environmental report can be challenged in court, and going too far in one direction will make it legally vulnerable. By express legal design, however, the courts favor agencies over plaintiffs for the more extensive environmental reviews, and many reviews never get challenged by anybody.

There's been some noise in California about "reforming" CEQA, mostly to make it easier to get projects done. I'm not adverse to some deals on it, but the type of reform I'm talking about hasn't seen much discussion.

For a contrary opinion to the idea that Keystone won't have much of a climate effect, read NRDC.

Coda to Eli's UVa post

See Eli's previous post.

Eli's right about ruling from the bench, as opposed to listening to the lawyers babble, ask some questions, and then taking the matter under submission to re-emerge weeks later with an opinion.  Ruling from the bench means the judge was very confident about who was right, and nothing in the four hours of oral argument preceding the ruling made the judge waver and consider delaying action to review the written briefs.  It's a smack-down of the side that loses.

Getting fees from the losing side when the losing side is a private entity is very unusual in America, so unfortunately I doubt that'll happen in this case.  OTOH, it's all a matter of state law, so maybe Virginia law might have something that would help.

A grain of salt about the accuracy of the summary by the losing side.  Maybe it's accurate, but don't bet the farm.  They make it sound like Mann's side lost some backup arguments they were trying out in case the main argument failed.  Losers are putting on a brave face, but they can't help noticing that they lost.  I expect there may be cross-appeals from Mann's side about their backup arguments, assuming he has the legal resources available to put in the effort.

It would be interesting to know if the judge ruled from the bench while reading a carefully-prepared statement or spoke more colloquially.  The former would probably carry more weight on appeal.

I read somewhere that 14 or so other states have similar provisions in their laws.  If the ruling is appealed and sustained, then the appellate court precedent could be persuasive elsewhere.  If it's not appealed, the decision by a lower court like this one has little or no persuasive authority.  Bad guys get to decide whether to double down on the issue.

Denialists denied by judge in New Zealand lawsuit

Via John Mashey, there's a blog post by Gareth on yet another attempt by climate denialists to muddy the record on climate change, this time by suing New Zealand's National Institute for Water and Atmospheric Research for publishing a temperature record that shows New Zealand warming up over the last century.

Definitely check out Gareth's post, or if you have time, the ruling itself.  Skimming it, seems like the denialists didn't have very good lawyers at first (or none at all) and then found someone more reasonable to help them.  A lawyer can't make magic out of bad material though, so in the end they got shut down completely (to be a fly on the wall and hear what their new lawyer told them about their prospects, or to see what document the lawyer required them to sign acknowledging those prospects).  Kind of fun to see my old friend Bob Carter get the skeptical treatment he's earned for himself.

And also these results:

[172] In summary on this point, the Trust [denialist group -ed.] alleges generally that NIWA failed to properly deal with the UHI/shelter issue which had the effect of other stations acquiring derivative warming from the inclusion of the Albert Park (Auckland) and Kelburn (Wellington) sites. Dr Wratt disagrees. He says that the excess temperature trend identified by the Trust for the Auckland series is incorrect. Further, even if it was correct, the effect it would have on the other sites would be negligible. Dr Wratt is of the view that Dr Carter has misinterpreted the scientific literature in making the claims he does.
....
[178] NIWA refers to eight lines of evidence that indicate New Zealand has warmed significantly over the period 1909 to 2009: 

• the consistent results of the recalculated 7SS following the review, which was consistent with the results recorded in the original 7SS series based on the Salinger 1992 work, plus subsequent annual updates; 
• peer review for the pre-2010 versions of 7SS, including by the editors of International Journal of Climatology; 
• the analysis and calculation of the trends using the Salinger post-1992 7SS by a separate set of scientists within NIWA; 
• trends from the independent 11SS, which disclosed that with no homogenisation the warming trend was 1.0 degrees Centigrade for 1931 to 2008; 
• results from the 21+3 station series; trends from ship measurements and surrounding oceans;52 retreat of New Zealand glaciers; 
• observed global climate changes. The IPCC 2007 assessment concludes warming of the climate system is unequivocal. It reports the 100 year linear trend (1906 to 2005) and global surface temperature is +.74 degrees Centigrade ±0.18.

Someone is judicially unimpressed with the ubiquitous urban heat island argument, and with the other arguments ignoring the mountain of evidence showing us that we're warming.

Should be interesting to see whether the agency will get its costs covered as the judge ordered.  Like Gareth, I wonder if the non-profit trust created to bring the lawsuit, instead of the denialist Climate Science Coalition, will be found to be a mysteriously asset-free husk capable of paying its own lawyer in advance, but otherwise broke.

One final note:  while Americans are legitimately criticized as litigious, this type of ridiculous lawsuit can't be done here.  It was just a scientific report - if you don't like it, then go do your own scientific report and argue it out.  You can only sue here over an action taken on the basis of a report, not to suppress the report itself (on the federal level at least, I can't vouch for Red states).  We did just barely dodge this bullet - industry groups snuck a two-paragraph rider into a budget bill in 2000 called the Information Quality Act or Data Quality Act as a means of gumming up the works and preventing exposure of their misdeeds.  Chris Mooney included it in his Republican War on Science book, but courts have generally told industry groups to go away when they tried to sue with it as a tool.  So that's one thing we've done right, at least.

Endangered Species Act also at risk along with Obamacare tomorrow

Obamacare undergoes Supreme Court scrutiny tomorrow, and we'll hear in a few weeks/months as to what the Court does.  The challenge is whether Congressional ability to regulate interstate commerce allows the government to require people to buy health insurance, paying a penalty if they refuse to do so.

Wading through the mumbo jumbo, I think we ultimately have two choices.  One is that except in the most strained and patchworked circumstances, Constitution places almost no restraint on the ability of the federal government to act like a state government in terms of economic regulation.  Politics, not courts, restrain the scope of federal government.  This is the choice that courts have made since the 1930s.

The other choice is that except in strained and patchworked ways, the Constitution doesn't allow the federal government to operate like a modern integrated nation-state in terms of economic regulation.  The government could figure out weird work-arounds involving tax incentives in some cases, but otherwise we'll just have to hope that government is the problem and not the solution, because we're not going to let it operate as a solution.

These are the ultimate choices, and a decision to partially overturn Obamacare doesn't send us all the way to the second choice.  It does start us down the road though, with consequences to follow.

Next in line could be the Endangered Species Act, which has been challenged often and unsuccessfully for involving non-economic, intrastate activity.  It's the nature of species dwindling enough to be eligible for listing as endangered that also makes them less important economically, and they rarely locate their last habitats on the border between states instead of inside a single state.  Lower courts haven't worried about this though, based on Supreme Court precedent since the 1930s.

The Supreme Court never reviewed this particular challenge though, and Chief Justice Roberts, back when he was a wee appellate judge, signaled his own concern with the ESA.  If the Supreme Court changes how we understand the Commerce Clause, things can change for environmental regulation.

A lot is dependent on what the Court decides over Obamacare, and on who gets to make the replacement appointments between now and January 2017.

A Locke on environmental protection and takings

Time for an environmental law tangent.

I've had an idea for years about applying John Locke's theory of property to environmental regulation that could've taken the form of a scholarly article or test case litigation, except that I've not done anything with it. Given a recent blogalanche of posts on Locke and environmental regulation (two posts that I know of), I thought I'd just blog about it. Somebody else is free to do something more substantive with the idea (maybe they have already* and I missed it), or maybe something will motivate me to do more.

So, the issue: regulation of private property by the US Constitution is limited when it goes too far and becomes a taking of private property that must bring compensation to the property owner. The best test of what "too far" means, so far, is the 1978 Penn Central case, where Justice Brennan sez the following factors must be balanced:

• (1) the economic impact of the regulation on the claimant,
• (2) the extent to which the regulation has interfered with distinct investment-backed expectations and
• (3) the character of the governmental action.

(Wiki for intermediate level detail).

Number 2 there has been somewhat problematic to apply. Enter John Locke!

Sec. 27. Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature hath placed it in, it hath by this labour something annexed to it, that excludes the common right of other men: for this labour being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good, left in common for others.

I see a lot of overlap between investment-backed expectations and the labor theory of property. Mixing your labor to transform the land makes it yours, as does investment that buy the land's transformation done by someone else.

One way to move forward would be to just drop investment-backed expectations and replace it with an analysis of whether the aspect of the land being regulated and protected is something that was created/transformed through human labor versus something that was intrinsic to the land. That, however, isn't going to happen anytime soon, as the law doesn't like to lurch that much. What could happen though is to use the labor theory of property as a means for deciding whether the expectation was reasonable and to determine the moral weight to be placed upon the investment made by the owner.

Environmental protection would generally, but not always, come out ahead under this analysis compared the kludge we have now for takings regulation. Soil and water quality are generally innate to the property and not created by the owner, so protecting them doesn't impinge upon something the owner's labor (or predecessor owner) created. Wetlands were generally there naturally, and similarly could be protected. Important to this is that "failing to harm" the land did not create the environmental values that were there originally. Many landowners who think their years of failing to harm the land gives them the subsequent right to harm it are just mistaken.

But then what if someone decides they want wetlands on their property, create some, and then ten years later change their mind? The labor theory of property would give that owner recourse against environmental regulation that she might not otherwise have. And I think that's okay - on an intuitive level, it makes sense.

Historic preservation has a contrary result where protection would generally, but not always, be lessened under this theory. Imagine a young person erects a distinctive building and then wants to destroy it 60 years later. This theory would give that person or possibly a successor owner a lot more room to claim a historic preservation rule constituted a taking. On the other hand, if a historic event like a battle occurred on the property that was not created by the owner's labor, protection of that historic value could be seen as a public right.

I think this concept could be tested through litigation. Civil rights litigation often preceded by looking at reverse discrimination. For example, gender discrimination in jury selection was thrown out in a case where it was men instead of women that were kept from a jury. I think that would the easiest approach to use to establish for Locke and takings - find a good historic preservation case, or an environmental value on a property that was created through labor and then regulated by government, and defend the landowner. Then we could see the value asserted on behalf of environmental protection more generally.

UPDATE: if anyone wants to collaborate on this, that might be the incentive I need to push it forward.

* A student article by Kraig Odabashian on Locke and investment-backed seems related, but sadly goes to a different concept of a "historic baseline" that I don't like very much. Not sure if anyone else has come closer.

How Republicans are encouraging command-and-control environmental regulation

The short answer is that Republicans encourage command-and-control environmental regulation because they're stopping environmental innovation that's often market-based, and old-style regulation is what's left. Proof:

• 1. National level. The big thing is climate change. The Republicans, with the help of some environmentalists on the left, killed cap-and-trade legislation. The carbon tax favored by the left environmentalists never got anywhere at all, and that's it for market approaches. What's left is command-and-control regulation through the Clean Air Act and the EPA. Another example is ocean fisheries, where Republicans have killed environmental attempts to establish "catch shares" that individually reward fishers when fish populations grow. So instead, we go with the old-style telling fishers how much of what to catch, when, and how they can do it.

• 2. State level. Here in California, the geniuses behind Proposition 26 have made it much harder to charge a fee on polluters for the damage they cause to the environment. (Incidentally, I attended a conference last week where a room full of lawyers could not figure out the effect Proposition 26 will have on government regulation, so fun times are ahead.) But all it affects is fees, not direct regulation and prohibitions, so one effect is to push direct control instead of recovery of externalities.

• 3. Local level. We've been trying with some success in the Bay Area to reduce the use of single-use takeout bags. The plastic bag industry, even before Prop 26, fought attempts to put a small fee on takeout plastic bags by litigation that argued this promoted paper bags with mixed environmental consequences. The result has been a semi-complete ban on plastic bags, ban on paper bags with no recycled content, and a fee on allowed paper bags. The industry efforts converted the fee into an outright command to ban plastic bags.

Conservatives often like to cite the law of unintended consequences when discussing environmental regulation. Not only does this overlook the unintended consequences of environmentally harmful actions, it misses the unintended consequences of promoting old-school environmental regulation instead.

Offsets and cap-and-trade: coming soon to the Clean Water Act

I'm attending a water law conference in San Diego this week. Today's presentation included a discussion of attempts to limit pollution in the Chesapeake Bay. The presenter said that nitrogen and phosphorus pollution is likely to be set at certain maximum levels pretty soon, and following that, anyone who wants to do something that adds pollutants will have to find offsetting reductions. He speculated that a cap-and-trade market might even emerge.

I think this is still more evidence that there's nothing innately wrong with offsets and trades in greenhouse gases, and that the only real question is whether the programs are done well or done poorly.

One other piece of info that was climate related: another presenter discussed cost-benefit analyses in federal environmental regulations. I asked whether international effects were considered. He said not as a usual matter, but climate change is forcing them to think about it. They now give two different prices for the cost effect of increased greenhouse gases: one price is if they assume the US is all that counts, and another if they assume that we live on planet Earth. We'll see which one ultimately wins out.

Spilling on the BP oil spill

Random comments:

*Many people might not realize that in hazardous businesses, it usually doesn't even matter if the entity causing the accident was negligent - instead, strict liability applies to require responsibility of anyone who chooses to engage in the type of action where safety may be impossible to guarantee.  Oil companies use their political power to mess up the law, however.

*Lifting the $75m liability cap needs to happen ASAP.  While I think lifting the cap will probably avoid restrictions on ex post facto laws, I'm not 100% convinced.  However, I'm pretty close to 100% convinced that any oil damage occurring after the cap is lifted, from either new oil being emitted or from the spread of existing spilled oil, will be subject to the new law and different cap.  (Worth noting the cap only applies to regular negligence, not gross negligence, and I think there's a pretty good argument for gross negligence here.)

*Anyone who thinks there should be a new cap at $10b is saying the public should be held responsible for damage the spiller causes to the environment that exceeds the cap.

*Contrary to William, I think the pressure not to distribute dividends is legit when that money might be needed to fix the environment and compensate the people who've been wronged.  My suggestion - put the money in escrow to be released with a later dividend if it's not needed.  The stock price should then adjust to reflect the probability that BP won't need to dip into the dividend escrow to pay off its liabilities.

*It's a tougher argument, but also contrary to William, I think there's a legitimate claim that BP should pay for some or all of the costs of the drilling moratorium.  The argument is strongest for costs/lost wages at rigs run by the companies involved in causing the current spill.  The current disaster also makes the potential consequences of a similar disaster elsewhere so much worse that there's a decent argument that the current disaster truly caused the need for a moratorium.  Finally, an ethical argument (not really a legal one, though) - the weak regulations are a result of BP's lobbying, in part, so it doesn't have much cause to say it shouldn't have to pay for a moratorium while the weak regulations are fixed.

*Pretty telling that a developing nation like Brazil required safeguards that the US considered optional.  Pretty strong case demonstrating regulatory capture in the US.

*Without any sophisticated analysis to back it up, I think two years in is the point at which a new administration bears more responsibility for institutional failure than the old one does.  So I still award Bush more blame than Obama for the terrible regulation.  I suppose this doesn't quite fit with how I view responsibility for 9-11, but I'm willing to give some blame in that case to Clinton, while awarding special and majority discredit to Bush for not reacting to obvious warning signs.

Cato and Pat Michaels bouncing on the edge of defamation

If you consider climatologist Michael Mann to be a private figure rather than a public one, Cato and Pat Michaels have probably violated defamation law by misattributing a quote to Mann which they consider an indication of Mann's unfitness to conduct science. I disagree with Joe at the link in calling it a lie - it appears to be an honest mistake, if also an indicator of Pat Michaels' work quality. The quote, a suggestion to exclude two poor-quality denialist papers from the IPCC process, was written by climatologist Phil Jones in an email to Mann (the papers weren't excluded).

People mess up "To" and "From" attribution in normal conversation, but I'd say a reasonable person writing a strong attack on someone for major media publication would read a short email carefully, so this mistake is a negligent one. That's enough fault when defaming a private individual, but attacks on public figures require a reckless disregard for the truth, which would be difficult to show here. I think Mann is a public figure on climate issues in the US, although he might have a shot of claiming otherwise in the UK.

An interesting twist on whether the quote actually made by Jones indicates that the speaker is an unfit scientist. I'm sure Jones would disagree. Trying to exclude bad work may have been a mistake, but I don't think it sinks to a level of indicating unfitness. However, Pat Michaels clearly thinks otherwise, and estoppel might prevent him from arguing in court differently from how he argued to the world.

Final aspect of the case is damages. Pat Michaels is a never-important and long-discredited figure in climatology, so his defense would be something like "no one in climatology takes seriously what I have to say, and it doesn't really harm the plaintiff that I misinformed the general public." Cato could point to its own plunging reputation as well (some Cato hack repeated the mistake on the Cato website). These are pretty good defenses.

All in all, it's what lawyers call a colorable, non-frivolous case, but not one I'd bring. Instead, I'd send a letter to Michaels and everyone who published his mistake, telling them that they're not going to get sued but requesting a published correction. Then I'd publish the letter and get some credit for being the better man, even if that's not a difficult achievement in this case.

Federal NEPA environmental rules to consider climate change (except they do already)

The news says Obama administration will come out soon with guidance on how climate change is to be incorporated into the National Environmental Policy Act, the main federal law on how environmental impacts are to be taken into consideration whenever the federal government takes action.

Sounds a little bigger than it is - NEPA disclosures have already considered climate impacts for years. When I was a law student in the late 1990s, we pushed for and got climate change consideration in a Forest Service NEPA document, overcoming some initial resistance. What's new (and beneficial) is formal, administrative guidance on how to handle the issue.

The news article also says this:

In a letter responding to Inhofe and Barrasso, Sutley said the act "cannot be used to regulate greenhouse gas emissions," suggesting that the administration would not block projects simply because they would add carbon dioxide to the air.

I think the reporter is reading too much into that statement, which really means that NEPA will not provide substantive controls over greenhouse gases as a whole. Under NEPA, any administrative decision-maker could theoretically decide that the negative climate impacts of a project outweigh its benefits, and kill the project.

There is a more general problem, however, with NEPA and its California equivalent, CEQA. Small projects with small impacts are supposed to get only limited environmental review unless they cumulatively contribute to large impacts, in which case they're supposed to get extensive and expensive environmental review. Any honest assessment of small projects with climate impacts would determine they have a cumulatively significant impact, but it's not feasible to do massive review on every small project. I'm not sure how they're going to solve this issue.

Bonus blogging: I don't know why some people like The Caryatids, but I'd give it a B-minus at most. Some interesting ideas about what might happen in the climate-changed future, combined with some not-at-all interesting ideas about a supervolcano under Yosemite and the sun going nova, with a plot where virtually nothing but exposition happens for the first sixty pages and for many interludes afterwards.

Deep thought: fiscal lies versus environmental lies

My day job requires me to critique self-serving environmental analyses that often attempt to obscure the environmental impacts they are legally required to disclose. Sometimes, I also review fiscal analyses of the same proposals (unfortunately not with the same level of personal knowledge).

My impression from that experience and from the national level is that fiscal analyses are even more skewed than environmental analyses.

Chamber of Commerce - leave it or fix it?

A major California utility, PG&E, has left the US Chamber of Commerce due to frustration with the Chamber's denialism. I've argued for "Greening the Chamber" by getting green businesses to change its policies, but there's something of a contradiction between quitting it and fixing it.

I'd still go for fixing it. The link describes a conversation with Microsoft about its continued role in the Chamber, despite Microsoft's opposition to the Chamber's policy. Corporations like Microsoft might be willing to work for change, but I don't think they'd be willing to quit. Also, green businesses could change local and state level Chambers even before they affect the national level, so it's not an all-or-nothing quest.

Other interesting news: Warming Law discusses the nuisance case against greenhouse gas polluters that has just passed an important hurdle of being accepted at the appellate level. It's possible that the Supreme Court will kill it, but I wouldn't count on it. Good news, and one more bargaining chip to help push the polluters in the right direction.

Quenching CO2 saturation but not CO2 litigation

Two climate miniposts:

First, Rabett discusses the "quenching" phenomenon that explains why CO2 infrared absorption isn't quickly saturated here, with much more in the comments. I had never understood the idea that the energy from CO2-absorbed radiation is transferred by direct physical contact with other molecules instead of being re-emitted. The part I still don't understand then is whether saturation could ever limit IR absorption so long as there's plenty of non-greenhouse gas molecules in the atmosphere to do the quenching.

Second, the lawsuit against the California waiver that allows California (and many other states following California's lead) to set greenhouse gas emissions for vehicles is back on again, despite the automaker commitment not to sue. The auto dealers are suing instead, in a typical trick. I agree with Warming Law that this isn't a moot issue, despite the fact that the feds have now adopted California's standards. It's a backstop against something going wrong with a federal effort (or, gods help us, a denialist Republican elected president in 2012). It also reinforces the legitimacy of the Clean Air Act waiver process which has been granted in virtually all cases before it became politically inconvenient for the fossil fuel industry and their political minions. California may need to do this again in the future, so we need to keep the option open.

Potential Supreme Court nominees I know, kind of

Since they're not on the short list I better blog about it before it becomes outdated, but two of my Stanford Law professors have been mentioned as Obama picks: Pam Karlan and former dean Kathleen Sullivan. I don't actually know that much about them as far as their scholarship goes, but I can say that both are excellent professors. Sullivan in particular was one of the two clearest instructors I had in school, which I think does translate into clearly conveying and arguing for her opinion on an issue.

Karlan probably has more of the empathy thing that people talk about, at least on the overt telegenic level that could help in confirmation. Sullivan is extremely cerebral, although she was nice to students, and helped me out on one research project even when I wasn't her student any more (she also gave me grief for repeatedly signing up and then dropping a class of hers because it was too early in the morning).

There's been some media attention to both of them being lesbians. I don't remember anything about Karlan, but Sullivan's orientation was considered an open secret at school ten years ago. I don't know anything about it directly, and for the most part it doesn't seem to play too big a role now. One more good sign in our national social development.

Less well known fact about Sullivan: she recently took part in a climate change lawsuit, but represented the bad guys, automakers trying to shut down tightened vehicle emission standards. It's perilous to try and guess someone's motivations, but Sullivan is far too intelligent and non-rightwing to be a denialist. Maybe she actually believes their legal position is right (which doesn't have to coincide with whether climate change is bad). Or maybe she was trying to build some political viability by not always taking the standard lefty position. That last is kind of unfair speculation, but I can't rule it out. Anyway, I'm pretty sure the automakers just got their lawsuit nuked by new Obama administration regulations and will be dropping it, which may be another thing Sullivan counted on.

My real reason for writing this post though is to talk about the one time in law school that I kind of outfoxed Kathleen Sullivan. Not that anyone else should or would care, but I'm going to write it. The story is that one morning before her class, I read the newspaper and noticed the Supreme Court had just decided a case that dealt with the issues we'd be talking about that day. I was very surprised though that she didn't mention the case in that class. Logic said either she wasn't up on her game and didn't know about the Court decision (probability near 0%), or she deliberately decided not to mention it.

Two months later, my study group was prepping for the final exam (which was 100% of the grade), and I found the Court decision, made our group study it, and we all wrote our own practice answers based on the facts the Court dealt with. Several days later, the case was a major part of our final exam, with only somewhat-changed facts. The test was open book, so each of us could just pull out our practice answers and revise them. I was very popular with my study group, and that was my huge triumph in school.

Sometimes it pays to read the newspaper.

Gristmill, Same Facts, and Volokhs are wrong

Gristmill's Gar Lipow is wrong to blame carbon trading for the recent defeat of an almost-okay clean air law in court. Lipow, who hates carbon trading, wrongly says the court used a "takings" argument to strike the law because it eliminates certain other kinds of pollution trading. The opinion that he never provides is here, and it doesn't making a takings argument. On page 43 the court rejects the idea that existing pollution permits in circulation are a currency (property right). On page 44 the court says the problem is not that EPA is prohibited from modifying permits, but that EPA hasn't cited a grant of permission to modify them. Nowhere does the court make or even accept "fairness" as a legal justification.

Whether the court's analysis is any good is another question. Two of the three judges (at least) are extremely conservative (we Californians remember Janice Rogers Brown), and even the plaintiffs didn't expect this outcome, so I'm doubtful. Might get overturned, but not before the end of the Bush Administration.

---------
Same Facts is wrong for saying of Sudan's tyrant that "Immunity and a comfy exile in a non-ICC state can be offered as part of a deal that ends the killing and lets the refugees return. The deal would have to be made by the UN Security Council under Article 16 of the Rome Statute, which allows it to suspend prosecutions, with such eventualities in mind." Article 16 suspensions are only for one year. While suspensions can be renewed, no self-respecting tyrant will count on that after he's gone from power, or repeat the exact same scenario offered to Liberian murderer Charles Taylor (now on trial after being given exile). I could've sworn I've written something about this but can't find it - the problem with the International Criminal Court is that no one can issue pardons that would help ease out the dictators.

------------
Volokh's Jonathan Adler is wrong for calling liberal lawprof Chemerinsky's federalism inverted. Adler ingenuously quotes another critic as saying "Mr. Chemerinsky sketches a vision of federalism that would empower government at all levels and delight civil plaintiffs and criminal defense lawyers of every description." They fail to realize the contradiction in claiming that delighting civil plaintiffs (against government) and defense lawyers (also against the government) is "empowering goverrnment." This freedom-is-slavery argument has got to go.

EPA v. the Forest Service, and the Ninth Circuit killing legal realism

The always-interesting-and-on-the-wrong-side Jonathan Adler has several posts about the recent Ninth Circuit Lands Council v. McNair case, where courts have pulled in somewhat the extent they will scrutinize Forest Service logging decisions, and the broader implications are unclear.

In Lands Council, an environmental group sued over a logging project in Idaho, lost at the district court level, but appealed and won at the appellate court in a 2-1 vote. The Forest Service was granted an en banc rehearing by 11 judges and won by an embarrassing 11-0 vote. The case is here. My knowledge of judges is getting rusty, but looking at the panel I seem some bad names but at least one good one. So what happened?

The case theoretically revolves around how much work the Forest Service has to do to prove it's not harming the environment (or maybe even help the environment, but that issue doesn't have broader implications). This new decision now says the Forest Service is the expert on this matter, not the judges, and therefore overrules prior court precedent on studies that would be needed. Enviros now need to do more work to prove the government is doing something wrong, rather than simply show the government didn't do its homework.

The key quote is this: "we hold that the Forest Service must support its conclusions that a project meets the requirements of the NFMA and relevant Forest Plan with studies that the agency, in its expertise, deems reliable." Of course, the government will now dismiss all evidence presented by project opponents by trotting out the project manager to say his expert opinion is that the contrary evidence is unreliable. How easily the courts will accept cursory rebuttals is the real open question of this case.

But here's the thing: I've dealt with logging proposals off and on during my legal career, virtually all of them claiming to be net beneficiaries to the environment, yet we environmentalists continue to oppose these claims. Where is the outrage at the hypocrisy of environmentalists stopping all the environmental benefits proposed by government? Maybe the court opinions would hide the outrage, but somebody should express that outrage and I don't see it.

This is a binary situation where either the government is trying to help the environment but is being stopped by alleged environmentalists, or the government is full of it. I think the lack of outrage indicates the latter. The Lands Council case involved a project where 95% of the treated land had logging, and only 5% skipped "harvesting."

What the Ninth Circuit had done in previous cases was push the Forest Service to justify its decisions, which I think is an expression of legal realism about the Forest Service and its failure to do its job. The contrast I'd make is with the EPA, which despite tremendous pressure from the White House actually made some legitimate findings about climate change.

Too bad the Ninth Circuit is moving in the wrong direction - hopefully it won't keep going that way.

Alaska legislature funding of climate skeptics only is a potential First Amendment violation

Jeff in Alaska alerted me to this article in the Anchorage Daily News, with a great lede:

The state Legislature is looking to hire a few good polar bear scientists. The conclusions have already been agreed upon -- researchers just have to fill in the science part.

A $2 million program funded with little debate by the Legislature last month calls for using state money to fund an "academic based" conference that highlights contrarian scientific research on global warming. Legislators hope to undermine the public perception of a widespread consensus among polar bear researchers that warming global temperatures and melting Arctic ice threaten the polar bears' survival.

The First Amendment to the US Constitution protects scientific expression as well as political expression. One of the fundamental rules of free expression is that the government cannot discriminate based on viewpoint. It can't say that science grants are only available to scientists registered as Republicans, for example.

Similarly, for the Alaskan government to offer funding only to those who disagree with the scientific viewpoint that human-caused warming is real, seems to be a straightforward viewpoint discrimination case, one made even worse by the political implications of climate science. If the funding goes through (unclear whether the governor will strike it) and a pro-consensus scientist denied a share of it, that person would have a great case, I think.

I can think of an unusual legal defense strategy though. It's perfectly legal to discriminate against crackpot theories, like the idea that evolution isn't real or that people aren't causing warming, because those theories lack scientific validity and the discrimination doesn't pick one scientific view over another. Alaska could make the converse argument - it isn't discriminating against some scientific viewpoints about climate but all scientific viewpoints, and a "nonsense only" funding screen is acceptable. The state might hesitate to make this argument, though.

I plan to send this post along to climate law and First Amendment bloggers to see what they think.