I was in the U.S. Supreme Court last Monday June 29 when the Court announced its final decisions of its 2014-15 Term. All nine Justices were present and retired Justice Stevens was in the audience. Normally there is not much drama associated with the announcement of decisions, but this day was different. The first half hour was occupied by the unusual spectacle of four Justices making statements concerning the Court’s 5-4 decision rejecting a claim that the use of a particular drug in lethal injections to carry out the death penalty constituted cruel and unusual punishment. After Justice Alito described his majority opinion and criticized the dissents in unusually tendentious terms, Justice Sotomayor made a passionate statement describing her dissent. Justice Breyer then described why he and Justice Ginsburg have decided that the death penalty is unconstitutional. Surprisingly, Justice Scalia then insisted on presenting a rebuttal, something that may be unprecedented during the Court’s announcement of opinions. He expressed his continued outrage with the Court’s June 26th decision recognizing a constitutional right for same sex couples to marry, which he described as five Justices imposing “their personal policy preferences” on the nation. He stated that the view that the death penalty was unconstitutional, expressed by Justices Breyer and Ginsburg, represented a similar attempt to constitutionalize “personal policy preferences.”
When the Chief Justice then announced that Justice Ginsburg had the next majority opinion, I briefly hoped it would be Michigan v. EPA, one of only two cases remaining to be decided. Unfortunately for EPA, Justice Ginsburg had the 5-4 decision upholding Arizona’s use of a redistricting commission. Justice Scalia announced the majority opinion in Michigan v. EPA. A copy of the decision is available online at: http://www.supremecourt.gov/opinions/14pdf/14-46_bqmc.pdf. By a 5-4 majority, the Court held that the words “appropriate and necessary” in § 112(n)(1)(A) of the Clean Air Act required EPA to consider costs when it made the initial decision to regulate emissions of mercury and air toxics from power plants. Scalia held that EPA’s subsequent consideration of costs when it promulgated the mercury and air toxics regulations was insufficient to comply with the statute.
While any defeat for EPA involving the Clean Air Act is significant, this actually proved to be a very narrow decision. EPA is not required to do cost-benefit analysis and the Court did not invalidate EPA’s regulations controlling emissions of mercury and other toxic air pollutants, contrary to what several news outlets erroneously reported. Emily Atkin, What Everyone Is Getting Wrong About the Supreme Court’s Mercury Pollution Ruling, Climate Progress, June 29, 2015 (http://thinkprogress.org/climate/2015/06/29/3675141/no-supreme-court-did-not-invalidate-mercury-rule/). Because EPA did prepare extensive analyses of costs and benefits when it issued the regulations, as Justice Kagan stressed in her dissent, it should be relatively easy for EPA to comply with the decision without the regulations being vacated. Moreover, virtually all the power plants that did not intend simply to shut down in response to the regulations are now in compliance with them (the regulations were not stayed pending judicial review). Thus, there is now a strong consensus that the decision, while unfortunate, is certainly not a huge loss for EPA. See, e.g., Alex Guillén, Supreme Court’s Ruling Comes Too Late for Coal, Politico, June 29, 2015 (http://www.politico.com/story/2015/06/supreme-court-epa-mercury-emissions-obama-environment-119541.html); Jack Lienke, Here’s Why You Shouldn’t Worry About the Supreme Court’s Latest Environmental Ruling, Grist, June 30, 2015 (http://grist.org/climate-energy/heres-why-you-shouldnt-worry-about-the-supreme-courts-latest-environmental-ruling/?utm_source=twitter&utm_medium=tweet&utm_campaign=socialflow).
Last week Brazilian President Dilma Rousseff visited the United States and met with President Obama at the White House. On June 30, the leaders of the two most populous countries in the Western Hemisphere, released a joint statement pledging that by 2030 at least 20% of each nation’s electricity would be generated by renewable sources, not including hydropower. Brazil also pledged to restore 12 million hectares (more than 46,000 square miles) of its forests by 2030, to intensify efforts to eliminate illegal deforestation, and to reduce the carbon intensity of its economy by 60-65%. Last week China filed a pledge with the UN that confirmed its November 2014 climate agreement with the U.S., pledging a 40-45% reduction in the carbon intensity of its economy by 2030. China also reaffirmed its agreement that it would generate at least 20% of its electricity from non-fossil fuel sources by 2030.
On June 30 the World Health Organization (WHO) and UNICEF issued a report tracking global progress in meeting the Millenium Development Goals for access to safe drinking water and sanitation. A copy of the report, Progress on Sanitation and Drinking Water: 2015 Update and MDG Assessment, is available online at: http://apps.who.int/iris/bitstream/10665/177752/1/9789241509145_eng.pdf?ua=1. The good news in the report is that since 1990 2.6 billion people (including 427 million in sub-Saharan Africa) have gained access to an improved drinking water source (defined as a facility or delivery point that protects water from open contamination). The bad news is that 2.4 billion people, one in three of the world population, still lack access to sanitation facilities that hygienically separate human excreta from human contact and 946 million people still have to defecate in the open. Only 68% of the world’s population uses an improved sanitation facility, nine percentage points below the Millenium Development Goal target of 77% for 2015.
By a vote of 7-0, the Oklahoma Supreme Court ruled last week that homeowners who suffered damage from an unusual swarm of earthquakes since November 2011 can pursue lawsuits against oil and gas companies whose fracking they allege caused the quakes. Plaintiffs in the lawsuits are two residents of Prague, Oklahoma, Sandra Lada and Jennifer L. Cooper. Cooper’s lawsuit is being brought as a class action on behalf of residents of nine counties that have sustained potentially millions of dollars in property damage from the quakes. The defendants - New Dominion, LLC of Tulsa, and Spess Oil Co. of Cleveland, Oklahoma - argued that regulation of oil and gas extraction activities by the state Corporation Commissions should insulate them from liability. The court rejected this argument, concluding that: “Allowing district courts to have jurisdiction in these types of private matters does not exercise inappropriate ‘oversight and control’ over the (Corporation Commission). Rather, it conforms to the long-held rule that district courts have exclusive jurisdiction over private tort actions when regulated oil and gas operations are at issue.” Studies increasingly are linking seismic activity to high-pressure injection activities.