Catastrophic Sea Level Rise More Likely, Hawkes Argument, FTC Sues VW, Judge Hufstedler's Passing (by Bob Percival)

Catastrophic sea level rise rapidly is becoming a more realistic possibility.  A recent study has indicated that global warming may cause the west Antarctic ice shelf to break apart and melt, raising global sea levels by 12 feet or more.  Total sea level rise could be five to six feet by 2100, more than twice the worst case scenario recently forecast by the Intergovernmental Panel on Climate Change (IGPCC).  In the next century sea levels could rise by as much as a foot per decade.  Justin Gillis, Climate Model Predicts West Antarctica Ice Sheet Could Melt Rapidly, New York Times, March 30, 2016. Another indication of rapid global warming, though not one that will contribute to sea level rise, is that for the second year in a row Arctic sea ice was at a record low wintertime maximum last month.

On March 30 I took some of the students in my Global Environmental Law Seminar to the U.S. Supreme Court to watch the oral argument in U.S. Army Corps of Engineers v. Hawkes Co.  The case involves a challenge by the federal government to a lower court ruling holding that landowners can immediately obtain judicial review of determinations that wetlands subject to §404 of the Clean Water Act are present on their property.  Based on the tenor of the argument, it seems unlikely that the federal government will win the case.  Justice Kennedy, the key swing vote, stated that “the Clean Water Act is unique in both being quite vague in its reach, arguably unconstitutionally vague, and certainly harsh in the civil and criminal sanctions it puts into practice.” Justice Sotomayor asked counsel for the Solicitor General, assuming that the government loses, “what’s the narrowest way to write this that the government would like?”

Last week the U.S. Federal Trade Commission (FTC) sued Volkswagen (VW) for deceiving consumers by advertising its supposedly “clean diesel” VWs and Audis.  The FTC charged that these claims were false and that VW equipped the cars with illegal emission defeat devices to deceive government emission testing. The FTC asked the court to require Volkswagen to compensate American consumers who bought affected vehicles between late 2008 and late 2015.  The FTC also sought an injunction to bar VW from such wrongdoing in the future.  

Automakers reportedly are having trouble complying with U.S. fuel economy standards as plunging oi prices encourage consumers to buy less fuel-efficient vehicles. Bill Vlasic, Automakers Likely to Ask for Leniency in Fule Rule, N.Y. Times, March 23, 2016, at B1.  However, the extraordinary consumer response to last week’s unveiling of the Tesla 3 electric car suggests that the transition to green transportation is alive and well.  Tesla received more than 275,000 pre-orders for the vehicle in three days.

Last week the U.S. Department of Justice filed its brief defending EPA’s Clean Power Plan (CPP), which regulates emissions of greenhouse gases by existing powerplants.  There are so many parties and amici in the case that six pages of the 175-page brief are a single-spaced listing of them.  Oral argument in the case, which is being heard by the U.S. Court of Appeals for the D.C. Circuit, will be held on June 2. While the CPP was stayed by the Supreme Court four days before the death of Justice Scalia, the prospect of a 4-4 split in that Court makes the D.C. Circuit’s decision potentially the final word on its legality.

On Wednesday March 30, pioneering former federal Judge Shirley M. Hufstedler passed away.  I had the enormous privilege of serving as a law clerk to her during 1978-79 when she was on the U.S. Court of Appeals for the Ninth Circuit.  In 1980, following my clerkship with Supreme Court Justice Byron White, I became a special assistant to Judge Hufstedler when she served as the first U.S. Secretary of Education.  It is widely believed that if a vacancy had arisen on the U.S. Supreme Court, President Carter would have nominated Judge Hufstedler to become the first female Justice on the Court. Judge Hufstedler had a formidable intellect and a truly inspiring personality.  She described her view of the role of a judge as to “do justice”. Carter would have nominated Judge Hufstedler to become the first female Justice on the Court.  Judge Hufstedler had a formidable intellect and a truly inspiring personality.  She described her view of the role of a judge as to “do justice”.