On the afternoon of February 13 the shocking news spread that Supreme Court Justice Antonin Scalia had been found dead while on a hunting vacation in west Texas. When I heard that the Justice had died south of Marfa, Texas near Big Bend National Park, my first reaction was that he died in one of the most beautiful parts of the world. When I was a child my father took my family on a vacation camping in Big Bend and it is one of the most beautiful places I have ever been. Justice Scalia was a truly amazing human being who was remembered by former President George W. Bush as someone who “brought intellect, good judgment and wit to the bench.” When my former student Derrick Wang wrote the opera “Scalia/Ginsburg” (see July 15, 2015 blog post), Justice Scalia warmly received it
The last order of the Supreme Court in which Justice Scalia cast the decisive vote was issued on the afternoon of Tuesday February 9. In an unprecedented action the Supreme Court shocked legal observers by voting 5-4 to block EPA’s Clean Power Plan (CPP) from taking effect. Justices Ginsburg, Breyer, Sotomayor and Kagan dissented. The Court’s decision was particularly surprising because the D.C. Circuit, which had expedited its hearing of legal challenges to the CPP, had unanimously denied a stay less than three weeks before. In a piece I was invited to write for the global blog “The Conversation,” I suggested that the Court’s decision may be “Bush v. Gore for the environment.” See www.theconversation.com/in-blocking-epa-clean-power-plan-is-the-supreme-court-wading-deeper-into-politics-54513 The piece was reposted by the Real Clear Energy website: http://www.realclearenergy.org/2016/02/12/is_supreme_court039s_epa_stay_like_bush_v_gore_274504.html
Meeting in Montreal last week the environmental committee of the International Civil Aviation Organization (ICAO) recommended rules to require new aircraft to emit fewer greenhouse gases (GHGs). The recommendations were criticized by environmental organizations because they would not require existing aircraft to offset their emissions in any way. New aircraft would be required to reduce their emissions by 4 percent by in 2028 compared with emissions from aircraft delivered in 2015. The ICAO agreed to consider developing such regulations only after the European Union’s program to require airlines flying to and from the EU to pay emissions charges for their GHGs was upheld by the European Court of Justice. The EU agreed temporarily to suspend enforcement of its aircraft emissions rules pending the development of a global program by the ICAO.
On Tuesday February 9 I spoke at the Cato Institute’s launch of a new book on property rights (Timothy & Cristina Sandefur, Cornerstone of Liberty: Property Rights in the 21st Century). I argued that environmental law actually protects property rights rather than infringing on them. I disputed the book’s assertion that there is a “national property rights crisis” in the United States in the wake of the Supreme Court’s 2005 decision in Kelo v. City of New London. l also defended EPA’s “waters of the U.S.” rule for determining what properties are wetlands subject to federal regulation under the Clean Water Act, by noting that the rule clarifies an area of law that is hopelessly confused in the wake of the Supreme Court’s 2006 decision in Rapanos v. United States. I also condemned the authors’ call for overruling the Supreme Court’s famous snail darter decision (TVA v. Hill) where the Court upheld the new Endangered Species Act. A video of the forum is available online at: http://www.cato.org/events/cornerstone-liberty-property-rights-21st-century-america-0
New research presented at the annual meeting of the American Association for the Advancement of Science (AAAS) calculates that 5.5 million people die annually from exposure to global air pollution. This is nearly as many as the 6 million global deaths caused annually from cigarette smoking. The country with the largest number of these deaths is China with India being the country with the second most deaths. The study estimates that 79,000 people in the U.S. die each year from respiratory diseases caused by air pollution and 218,000 people die each year in the EU from air pollution. Darryl Fears, More than 5 Million People a Year Die from Polluted Air, Washington Post, February 13, 2016, at A3.
On February 11 Southern California Gas Company announce that the massive leak of natural gas north of Los Angeles that has been occurring for more than three months finally was capped, at least temporarily. It is estimated that the leak released two million tons of methane, a potent GHG, into the atmosphere.
This week the Organization of American States honored some officials who had contributed to the development of environmental jurisprudence in Central and South America. Prior to the OAS awards ceremony on Thursday February 11, I spoke at a meeting at the Environmental Law Institute that focused on the development of a Global Judicial Institute for the Environment. Among the judges who spoke at the meeting were Brazilian Supreme Constitutional Court Justice Antonio Benjamin, Argentina’s Chief Justice Ricardo Lorenzetti, and judges on EPA’s Environmental Appeals Board. Some participants seemed in shock that the U.S. Supreme Court had stayed EPA’s Clean Power Plan.