Monday, September 05, 2011

Court to Repubs: kill EPA climate regulations and you'll get blowback

The headline is my takeaway from this Jonathan Adler post at the Volokhs, although it may not be his. Here's the appellate court ruling, about whether actions risking the spread of the invasive species, Asian carp, require a preliminary injunction against a public nuisance:

. . . In our view, the plaintiffs presented enough evidence at this preliminary stage of the case to establish a good or perhaps even a substantial likelihood of harm – that is, a non-trivial chance that the carp will invade Lake Michigan in numbers great enough to constitute a public nuisance.... That does not mean, however, that they are automatically entitled to injunctive relief. The defendants, in collaboration with a great number of agencies and experts from the state and federal governments, have mounted a full-scale effort to stop the carp from reaching the Great Lakes, and this group has promised that additional steps will be taken in the near future. This effort diminishes any role that equitable relief would otherwise play. Although this case does not involve the same kind of formal legal regime that caused the Supreme Court to find displacement of the courts’ commonlaw powers in American Electric Power, on the present state of the record we have something close to it. In light of the active regulatory efforts that are ongoing, we conclude that an interim injunction would only get in the way. We stress, however, that if the agencies slip into somnolence or if the record reveals new information at the permanent injunction stage, this conclusion can be revisited.

(Emphasis added.)

American Electric Power was the attempt to bring a public nuisance case against a variety of companies for greenhouse gas pollution. The Supreme Court, with the support of the Obama Administration, threw the case out because the EPA was regulating greenhouse gas anyway. I argued a while back that the Obama Admin positioned itself this way to provide a disincentive to Republicans for killing (or more likely, defunding) Clean Air Act climate regulations and enforcement, that doing so would revive the public nuisance lawsuits.

Now we have a similar issue, expressly citing AEP, that warns that "somnolence" can bring about public nuisance injunctions. As I said in my previous argument, I'd rather have a public nuisance case and EPA regulations, but there is a reason behind Obama's strategy.

Somewhat tangential: Adler is an interesting type, btw. Previously I would've classified him as a delayer/lukewarmist, and dismiss as unimpressive his position of semi-supporting little other than a politically infeasible carbon tax. I think he may have shifted a bit, though, along with a few other conservative intellectuals who are having troubles with the anti-science positions on their side of politics.