Category: General Law


The Environment Goes 0 for 5 in the 2008-2009 Supreme Court Term

Yesterday the U.S. Supreme Court concluded its 2008-2009 Term. A week ago the Court decided the last of the five environmental cases it heard this Term. The environmental cases involved issues arising under the National Environmental Policy Act, the National Forest Management Act, the Clean Water Act, and the Superfund legislation. In each of these cases the environment lost. The winners were the U.S. military (Winter v. NRDC), the timber industry (Summers v. Earth Island Institute), electric utilities (Entergy Corp. v. Riverkeeper, Inc.), the mining industry (Coeur Alaska v. Southeast Alaska Conservation Council), chemical companies and railroads (Burlington Northern and Santa Fe Ry. Co. v. U.S.). The losers were marine mammals, the national forests, fish living in proximity to power plants and mines, and taxpayers stuck with paying for cleaning up contaminated land.

When a baseball player goes 0 for 5 he has had a bad day. Usually it is quickly forgotten. Few recall Lou Pinella going 0 for 5 in his final game as a Yankee (though he did get the game-winning RBI by not being doubled up at first on a groundout) or Melvin Mora going 0 for 5 in his first game after becoming the father of quintuplets. But 0 for 5 for the environment in the Supreme Court is not so easily dismissed.

For one thing, five Justices voted against the environment in all five cases. It is not hard to guess who they are – Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito. Of that group, only Justice Kennedy seems persuadable in environmental cases (he provided the crucial fifth vote two years ago in Massachusetts v. EPA, the important climate change case). This year’s result again confirms that if you have an environmental case and Justice Kennedy is not with you, you lose.

Not all of the decisions were 5-4. In fact, Justice Ginsburg was the only Justice to dissent in all five cases. Justice Souter, who has just retired from the Court, dissented in every case except for Burlington Northern where the Court by a vote of 8-1 altered Superfund jurisprudence to reduce the share of cleanup costs paid by companies. Justice Stevens wrote the majority opinion in that case. Justice Stevens, a decorated World War II Naval officer, also partially concurred in the Winter v. NRDC decision that dissolved a preliminary injunction against the Navy’s testing of sonar that could harm marine mammals.

Justice Breyer wrote a strong dissent against the Court’s rejection of an environmental group’s standing to challenge forest management regulations in Summers v. Earth Island Institute. But he joined the majority in both the Burlington Northern Superfund case and the Coeur Alaska decision that allowed a mining company to avoid a prohibition on tailings discharges by characterizing them as “fill” because they will fill a lake and kill all the fish. In two of the other environmental cases Breyer partially concurred, advocating remands to reformulate the injunction restricting sonar testing in Winter and to give EPA a chance to explain its shifting views on cost-benefit analysis when setting effluent limits for cooling intake structures in Entergy.

The Court’s environmental decisions show a strong pro-business tilt among five of the Justices, who are concerned that environmental regulations may be unreasonably stringent. They are joined at times by Justice Breyer who also harbors concerns about overregulation, while expressing sympathy for the goals of the environmental laws. The Court continues to have particular antipathy towards the Ninth Circuit, reversing it in four out of the five environmental cases. In the other case (Entergy) it reversed a decision by the Second Circuit that had been authored by Judge Sonya Sotomayor, President Obama’s nominee to replace Justice Souter on the Supreme Court.

Some have argued that the consistent thread running through the Court’s environmental decisions is deference to the government. However, the government was the loser in the Burlington Northern Superfund case and it unsuccessfully opposed Supreme Court review in both the Entergy and Coeur Alaska cases where the Court ultimately ruled in favor of regulatory changes made by the Bush administration. Thus, the Court is being aggressive in setting its own agenda for what environmental cases it will review. So far the Court has agreed to review only one environmental case in its next Term – a decision by the Supreme Court of Florida upholding a beachfront replenishment law against a regulatory takings claim by landowners (Stop the Beach Renourishment v. Florida Dept. of Environmental Conservation). Few anticipated that the Court would agree to hear this case. Its decision to do so may signal renewed interest in reviving regulatory takings doctrine.

Justice Souter’s retirement is unlikely to change the prospects for environmental interests in the Supreme Court. Justice Ginsburg now becomes the most reliable champion of the environment on the Court, but Justice Kennedy will remain the decisive vote in most cases.


Columbia Law Review, Volume 109 Issue 4 (May 2009)


Columbia Law Review, Volume 109 Issue 4 (May 2009)


An Aggregate Approach to Antitrust:  Using New Data and Rulemaking to Preserve Drug Competition

C. Scott Hemphill

Revealing Choices:  Using Taxpayer Choice to Target Tax Enforcement

Alex Raskolnikov


Between Healthy and Hartman:  Probable Cause in Retaliatory Arrest Cases

The Lorax State:  Parens Patriae and the Provision of Public Goods


Federalization Snowballs:  The Need for National Action in Medical Malpractice Reform

Abigail R. Moncrieff


Climate Change Legislation

On Friday the U.S. House of Representatives approved the American Clean Energy and Security Act of 2009, a bill to establish a far-reaching program to control U.S. emissions of greenhouse gases (GHGs). The vote was 219-212 with only eight Republicans voting in favor of the bill and 44 Democrats opposing it. The bill adopts a cap-and-trade program designed to reduce U.S. GHG emissions by 17% below 2005 levels by the year 2020, and by 83% by 2050.

The bill seeks to fulfill an important campaign promise by President Obama by having the U.S. join the ranks of all other developed nations who have committed to control their GHG emissions to reduce the severity of climate change. President Obama has asked Congress to enact such legislation by December when the nations of the world will meet in Copenhagen to adopt a successor to the Kyoto Protocol.

To win acceptance in the House many compromises had to be made. Instead of auctioning off all emissions allowances, as President Obama had advocated, the bill distributes 85% of them for free to various entities, including electric utilities, in order to reduce their compliance costs. To mollify farm interests, it gives the Department of Agriculture, instead of EPA, responsibility for certifying by projects that offset GHG emissions. A few environmental groups, such as Greenpeace, opposed the legislation as not strong enough, but most argued that it is better than not having any legislation to control GHG emissions.

The debate on the House floor, and the near party-line vote, illustrated how polarized the debate over climate change has become. Some opponents of the bill denounced the concept of climate change as junk science and argued that the legislation would cripple an economy that already is reeling. I was reminded of the dire predictions made by the opponents of the 1990 Clean Air Act Amendments, which established a national cap-and-trade program to reduce emissions of sulfur dioxide. Opponents of that legislation, citing a group of Nobel prize-winning economists, also forecast dire economic consequences and argued that the U.S. could not afford it on the eve of the first Gulf War. Yet that legislation has produced enormous net benefits, as even OMB agrees.

The bill now faces a difficult fight in the U.S. Senate where it will be necessary to win 60 votes to overcome a Republican filibuster. Legislation that imposes short-term costs for long-term benefits is always a difficult political sell. Thus, many environmental laws were adopted only after highly publicized environmental disasters and Congress often exempts existing sources from new pollution controls. A basic flaw in the original Clean Air Act was that it indefinitely exempted existing power plants from the new pollution control standards it imposed on new plants. This encouraged companies to go to extraordinary lengths to extend the lives of existing plants, causing far more pollution than anticipated. A much better approach was adopted by Congress in the Oil Pollution Act when it phased in new double hull requirements for oil tankers based on the age of existing ships.

The climate bill approved by the House responds to concerns that countries that fail to control their GHG emissions could gain a competitive advantage over U.S. industries by authorizing a form of carbon tariffs to protect industries that face such competition. In a report issued on Friday, the World Trade Organization (WTO) and the UN Environment Programme (UNEP) suggested that carbon tariffs may be acceptable under existing WTO rules to level the playing field between domestic industries that have to control their GHG emissions and foreign competitors who do not. A copy of the report, WTO & UNEP, Trade and Climate Change (2009), is available at


Supreme Court Highlights

A practicing attorney I know has been asked to make a CLE presentation on the ten most important Supreme Court cases from the 2008-2009  term.  I’m wondering what cases CoOp readers would put on the list.  Please comment!

The Rationing Scare

The opposition to real health reform boils down to two lines of attack: 1) the government will spend too much money and bankrupt us or 2) the government will spend too little money and ration our care. To the extent I can find people who make the first point while also opposing the many recent tax giveaways to the very wealthy, I’ll try to engage them. The rationing point is more interesting, but needs to compare reform proposals to the status quo–not some big rock candy mountain of free and fabulous care for all.
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The Unconventional Economics of Health Care

In a response to one of my posts on the public plan, Tyler Cowen noted that it was “hard to translate” my points into “econspeak.” I agree, and I think that’s one reason why we need to pay attention to “alternative economics of health care,” to use the title of Geoffrey M. Hodgson’s excellent article. In a series of posts over the next few days, I will focus on the many ways in which classical economic reasoning fails in the health care context, and what that means for law.

For an accessible opening example, consider Charles Morris’s description of the “bargaining” between doctors and insurers in his book “The Surgeons.” From a chapter entitled Money, here is a fascinating and counterintuitive insight on the interplay between incentives and medical care:

There is a strongly held opinion, particularly among conservative think tanks, that with multiple competitive private payers, the normal interactions between vendors and payers will gradually create a more efficient health care system. I saw no evidence to support that belief.

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The Metro Crash and Tax: A WMATA Leaseback Agreement

You can click here to see the documents that make up one of the WMATA leaseback agreements.  It was an exhibit last year in a lawsuit that was eventually settled.   I haven’t yet had a chance to read through it carefully, but in case others want to review it, I thought I would make it available.  Note that we do not know whether this particular leaseback agreement involved the Rohr 1000-series cars (the page that lists the equipment involved is blank).

Additionally, Senator Grassley has picked up on the issue.

(Thanks to Matthew Mantel, one of the many excellent GW law librarians, for finding this document.)

(Edit: This is the third post in a series. One, two, three, four, five.)


On the Rumored Cyber Security Czar Candidate: Let’s Look Before We Leap

800px-le_parkour_-_saut_de_prc3a9cisionAccording to Time magazine, former Congressman Tom Davis has emerged as a front runner for the newly created Cyber Security Czar position.  The Time piece cited Davis’s authorship of the Federal Information Security Management Act of 2002, his work as chair of the Subcommittee on Technology and Procurement policy, his connections to the IT community through his former district, and his current work at Deloitte as some of the reasons supporting his candidacy.

President Obama has stressed that privacy is key to the government’s cyber security efforts.  Davis’s record on privacy issues, however, is troubling.  As Wired’s Ryan Singel reports, Davis has been on the “wrong side of privacy issues.”  Davis supported the controversial REAL ID Act.”  He attempted to undo a measure that ultimately put a chief privacy officer in every major government agency.  He embraced the Bush Administration’s expansion of government wiretapping powers.  Aside from his spotty record on privacy, Davis’s congressional record suggests that he does not share the President’s regard for government transparency.  He helped pass the Critical Infrastructure Act, which created an exemption to FOIA for information provided DHS by private companies concerning its oversight of critical infrastructure.  Hopefully, the President will consider these issues before making his final decision.


Why We Should Care About Privacy in a Government 2.0 World

1151047_women_color_4Yesterday, I wrote about the public’s expectations regarding privacy when interacting with government on social networking sites such as Facebook, MySpace, Flickr among others.  Why should we care if agencies collect our musings, videos, and pictures that we have willingly shared with online “friends,” both real and imaginary ones?

Here are some practical concerns: the personal information on MySpace pages could be collected and joined with other data gathered from private data mining companies, public sector databases, etc.  (Oftentimes, data about us collected by third parties is often faulty).  All together, the information could suggest (albeit falsely) that we constitute a threat to society.  Law enforcement could be informed and our names could be put on watch lists.  This is not a hypothetical problem, see here.  If federal agencies collected and maintained that data in their systems, it would be covered by the Privacy Act of 1974.  Nonetheless, you would still appear on a watch list or assigned another ignominious fate by an automated government system.

As a normative matter, the absence of privacy vis-a-vis government on online social networking sites is unappealing.  It would likely have an impact on our willingness to friend government agencies.  We would be less likely to join online conversations that the Open Government directive hopes to generate.  Or if we friend a government agency because we want to peer inside its operations, we may edit what we include on our profiles.  As Julie Cohen has elegantly developed in her work, the lack of privacy would chill our creativity and desire to experiment with different aspects of our personalities.  And Patricia Sanchez Abril has a superb piece entitled “A (My)Space of One’s Own: On Privacy and Online Social Networks” that discusses the social implications of a “no privacy” presumption in information we share with our friends on social networking sites.  Justice Douglas’s remark that “monitoring, if prevalent, certainly kills free discourse and spontaneous utterances” should not be lost to us here.

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Litigation as Feud

The Hatfield clan in 1897.

The Hatfield clan in 1897.

Orlando Residence v. G.P Co., LLC is an exceptionally complex dispute, ongoing in various forms since the 1980s, which I’ve been fortunate enough to get to recode for my veil piercing project.  This January, the case came up on appeal, again, before the Seventh Circuit.  In an exceptionally clear opinion, Judge Posner took the parties to task and directed the trial court to move them toward some kind of peace.  Too bad he had to lead off with this bit of rational actor claptrap:

“For 22 years these parties and their predecessors have been litigating, in numerous lawsuits in different courts, a dispute over a piece of property in Nashville. We were told at argument without contradiction that the parties have expended $3 million in legal fees, a figure that exceeds any reasonable estimate of the amount in controversy. Yet such behavior need not be irrational or a product of spite or even of bad legal advice. A rational litigant, having expended $X in unsuccessful efforts to prevail, yet having additional litigation options that he can pursue, will compare the cost of those options to the expected benefit, disregarding the $X he has spent already. That is a sunk cost–a cost he cannot recover by anything he does and therefore a cost that will not influence his behavior (if he is rational). Still, from an overall social standpoint, the money spent on this litigation–which we cannot quite end today, much as we would like to–is excessive. But our decision will bring the end within sight.”

Er, yes.  It could be that the parties are thinking about litigation as a series of real options. But if Posner had read the underlying dockets, I think he’d come to a different conclusion.  I’d say something more like a mix of legal agency costs and unadulterated hatred.  The point is generalizable.  Vexatious commercial litigation is exceedingly rare – I’ve found in previous work that less than 1% of cases have more than 150 docket entries.  And it strikes me (anecdotally) that the amount at stake is at best a noisy predictor of such messy fights.