March 21, 2007

"Troposphere, whatever."

I've just been reading the oral argument in Massachusetts v. EPA, which was argued back in November. (PDF.) The state of Massachusetts is suing to force the EPA to regulate carbon dioxide emissions. A key point of contention is whether carbon dioxide counts as a pollutant within the meaning of the Clean Air Act. Here's a striking exchange between Justice Scalia and James R. Milkey, counsel for the state of Massachusetts:
JUSTICE SCALIA: Mr. Milkey, I had -- my problem is precisely on the impermissible grounds. To be sure, carbon dioxide is a pollutant, and it can be an air pollutant. If we fill this room with carbon dioxide, it could be an air pollutant that endangers health. But I always thought an air pollutant was something different from a stratospheric pollutant, and your claim here is not that the pollution of what we normally call "air" is endangering health. That isn't, that isn't -- your assertion is that after the pollutant leaves the air and goes up into the stratosphere it is contributing to global warming.

MR. MILKEY: Respectfully, Your Honor, it is not the stratosphere. It's the troposphere.

JUSTICE SCALIA: Troposphere, whatever. I told you before I'm not a scientist.

(Laughter.)

JUSTICE SCALIA: That's why I don't want to have to deal with global warming, to tell you the truth.
That's funny and painful, but is it painful in a way that makes Justice Scalia look bad? Actually, no. He is, I think, implying that he needs to defer to the EPA's decision about what the Clean Air Act covers. How can he possibly have a better view of it? He's not a scientist.

ADDED: What's really painfully funny is that Scalia's theory of the role of the courts makes it possible for him to say that the more incompetent he is the more he is right. It's damned clever!

48 comments:

Slocum said...

To be sure, carbon dioxide is a pollutant, and it can be an air pollutant. If we fill this room with carbon dioxide, it could be an air pollutant that endangers health.

That's pretty silly -- filling the room with any gas other than oxygen would kill everybody inside very quickly, but does that make nitrogen (which makes up 80% of the atmosphere) a pollutant?

And even oxygen -- breathing 100% oxygen at normal air pressure is very dangerous to your health (not to mention a serious fire risk). So by Scalia's reasoning, oxygen must also be considered a pollutant, too.

No, he's not a scientist...

MadisonMan said...

The most jarring thing to me, a scientist, is the laughter after he says he's not a scientist. Why is scientific ignorance funny?

cokaygne said...

Absolutely right. If Congress gave EPA the job of determining what is air pollution, then those who don't like the outcome should go back to Congress. One would have thought that the outcome of the 2000 election would have cured liberals of the notion that the courts would solve their problems.

Fritz said...

Great example of seeking relief in court for something that can not be proven to legislators. I'm confident that "bong stinks 4 Jesus" will rule in favor.

RogerA said...

What MM said--and it is not only scientific ignorance; it's what I would call engineering ignorance. For example, how many folks can explain how a refrigerator works, or even more difficult, how a color TV works?

Doyle said...

Ah yes, ignorance in the service of pro-global warming policy. It's a beautiful thing.

StephenB said...

JUSTICE SCALIA: Troposphere, whatever. I told you before I'm not a scientist.

(Laughter.)

JUSTICE SCALIA: That's why I don't want to have to deal with global warming, to tell you the truth.


I just wrote a paper in which I asserted that it is ridiculous to hand someone a black robe, pay them $194k, and expect them to solve the problems of the world.

I also included a quote from Justice Scalia talking about Roper: "Why in the world would you have it interpreted by nine lawyers."

reality check said...

Puhleaze! If it's obvious to Sloanasaurus, Cedarford, Simon, Glenn Reynolds and others, it is certainly obvious to a man of Scalia's impressive cranial capacity.

I doubt if it takes him more than 0.1% of his dome to do away with all of global warming.

Quack!

Sloanasaurus said...

I am sure Scalia ran home to buy carbon offsets (after his 1400 interviews).

George said...

Global warming is the secular equivalent of the Rapture. The world will soon come to an end; we must all repent, and perhaps the purest among us will be saved.

Just last night in the book "Eco-Freaks" by Paul Berlau, I read that because CO2 was not viewed as a pollutant in the 1960s and 70s, the govt. required catalytic converters in cars to transform deadly CO (carbon monoxide) to friendly CO2. (p. 118) Of course, now, however, we're being asked to believe that the non-polluting CO2 is now changing the Earth's climate in deadly ways.

Perhaps the clever Justice wants to find some way around whatever the environmentalists seek in this case. Beware of smart people who play the fool.

(Interestingly, Berlau also contends that the ban on DDT has caused 20 million deaths in African alone; that had asbestos not been banned, the WTC might still be standing (its upper floors used the modern-day inferior substitute); and that medium-priced station wagons are no longer made because govt. restrictions have made them uneconomical to manufacture.

Zach said...

On Scalia's point, I certainly had the impression that the Clean Air Act concerned noxious pollutants that directly interfered with human health when they were breathed. Whereas global warming interferes with human health indirectly and at long remove. The actual harms don't come through noxious chemical effects at all.

Wouldn't we be better served by a new bill that directly faces CO2 emissions and makes whatever political compromises are necessary? This kind of Wizard of Oz "You've had the power all along!" policymaking seems like an encroachment on Congress's responsibilities and capabilities.

Cedarford said...

I find Scalia very refreshing in admitting that there are limits to what courts should involve themselves in. If it is not O'Connor playing oracle of the court and divinating the place in society for gay anal sex, gay marriage and precisely how much longer affirmative action needed to be around - 25 years - its Breyer and Ginsburg telling folks that the courts know best what international laws supercede the Constitution...not mere elected officials...

Its all too much, and Scalia urging society to task the courts from legislating from the bench is essential, IMO, for a healthy society.

In the Massachussets v. EPA case, you have a 100% Democratic Congressional delegation that could make the case to modify the EPA laws to include CO2 - if they could convince a majority. But they can't, as shown in the dismal (for Greenies) vote by the Senate 95-0 NOT to ratify Kyoto. So they try to bypass Democracy by having the Courts try and force the Executive to change an Agency supposedly under direct Congresssional oversight and laws..

Again and again, Scalia shows why we need less activist judges, not more. Get the Lefties out of the courts, they have messed up so much in the last 40 years..

RogerA said...
What MM said--and it is not only scientific ignorance; it's what I would call engineering ignorance. For example, how many folks can explain how a refrigerator works, or even more difficult, how a color TV works?


MM is likely scientifically ignorant to presume that someone not expert on all "layer" designations for the Earth. As complex as science and engineering are, that is the reason why both disciplines are split into fields of expertise..

From my experience in engineering, the HS grads of Europe and most of Asia get a far superior education in the sciences than American students - even those not at dumbed down schools - do. They show up for college 1-2 years ahead of Americans in their chosen field, and have a pretty impressive, broad base.

Americans may not know how a refrigerator, color TV, CPU clock, or how electric motors work - but most Japanese, Russian, and French HS grads do.

But we leave them in the dust on safe sex or who the 1st black person in outer space was...

Roger said...

OMG--yet another global warming debate in the offing! must be a slow day in Madison.

P. Rich said...

Looks like the case might be headed in the right direction, which is into the overflowing round-file of liberal excess.

The State of MA is being its usual litigious self. Maybe they should initiate a campaign for Dem voters (CO2 producers all) to stop exhaling and encourage some sterling MA politicians to lead by example. I nominate E. M. Kennedy, J. F. Kerry and the slippery governor. Exploding heads, great satire...

Anthony said...

Rather refreshing to see someone in Washington not claiming to know everything.

Of course, Gore isn't a scientist either. Which is so very abundantly and sadly clear whenever he opens his mouth.

Abraham said...

Puhleaze! If it's obvious to Sloanasaurus, Cedarford, Simon, Glenn Reynolds and others, it is certainly obvious to a man of Scalia's impressive cranial capacity.

. <---The point

(WHOOSH)

-O-
/|\ <---You

MadisonMan said...

MM is likely scientifically ignorant to presume that someone not expert on all "layer" designations for the Earth.

Are there words missing from this sentence? I cannot parse it.

Al Maviva said...

Well, *obviously* Scalia doesn't know anything about global warming. He's just a crusty old lawyer raised in the era of stenographers and pencil-written notes on yellow legal pad. But I bet Justices Stevens, Ginsburg, Breyer, and old whatshisface will tell us in the Court's opinion that they know a hell of a lot more than he does - especially if they consult the European press. A decent respect for the opinions of mankind and all that, you know.

/sarcasm

What's funny about the scientific ignorance, MM, is that there are so many people claiming scientific omniscience, who probably have fewer intellectual chops than the typical federal judge. Moreover, in their absolute double secret moral certainty that global warming is completely man-made, and that we need to shut down all CO2 emitting source immediately, they sort of miss that whole idea about falsifiability being one of the key tests of scientific truth. (Not to mention missing the nature of scientific "truth," which could best be summed up as "the absolute god's honest explanation for what is occurring... until it's supplanted by a better reason." The global warming religionists have a couple problems - first off, it's really speculative to chalk the entire problem up to mankind based on sketchy climate models, second off, what does this absolute moral truth do when a better hypothesis comes along? Would a more reliable climate model, say one showing warming is 90% caused by solar and earth orbit variations, be accused of being a Global Warming Denier, rather than "a more accurate hypothesis"? I think so.

I also think the worst form of scientific ignorance is to assume you know something, when in truth, you don't really know it. Who is more scientifically ignorant - Scalia, who at least knows he doesn't know much about climatology, or the talking points mouth breathers who can spew Inconvenient Truths but who won't accept that some of the opinions they state as fact are inconveniently, truthfully, not falsifiable?

Cedarford said...

MM - The meaning of the word "is", is obvious except I failed to insert it.
Like Scalia, I do not claim to be an expert in all fields of knowledge, but I know science a lot better than proofreading.

MM is likely scientifically ignorant to presume that someone not expert on all "layer" designations for the Earth is.

Meaning anyone who studies science knows that the field is so vast that you can at best get a light general knowledge before having to focus on knowledge related to a specific field of study. Someone who presumes that a lawyer can readily grasp a number of scientific fields otherwise they are scientifically ignorant - is themselves scientifically ignorant from simply having that belief.

A constructive, helpful person recognizes the existence of unavoidable "holes" in their knowledge, and admits it to others if it has bearing on a project or decision they are involved in. That is not ignorance, but wisdom.

MadisonMan said...

Cedarford, the part of meteorology that Scalia is ignorant of is taught in any introductory meteorology course. It's not at all advanced. I'm reminded of the poll of Harvard graduates who were asked why there are seasons. A depressingly high number don't know.

I'll repeat what struck me the most: (Laughter). Why is it funny that a Supreme Court justice is ignorant of the most rudimentary aspects of science in a case he's deciding? It's all very nice that Scalia owned up to his ignorance, but why the laughter?

RogerA said...

Wow--having been forced on to google to research how many layers there are to the atomosphere, imagine my surprise to learn there are a lot more than the three I thought! I have to sympathize with Justice Scalia--even had I taken a course in meteorology, I dont think I would have remembered that piece of info.

Cedarford said...

Cedarford, the part of meteorology that Scalia is ignorant of is taught in any introductory meteorology course. It's not at all advanced.

Refresh me Madison Man, on how many colleges include meteorology in pre-law curriculum?
Why the expectation that Scalia and the rest have taken a Met101 course? And you have probably forgotten yourself that most HS physical sciences DO spend a bit of time on lithosphere, troposphere, stratosphere, the magnetosphere, the Van Allen belts, etc., etc., enough that perhaps you should know them and the difference between the Silurean and Devonian ages enough to regurgitate them on a quiz. THEN forget them.

If you have forgotten, think that Scalia hasn''t had that stuff likely discussed in over 50 years of working.

I'm reminded of the poll of Harvard graduates who were asked why there are seasons. A depressingly high number don't know.

Those ignorant Harvardites! Especially my nephew, who maintains the Sumerians 1st figured out the Earth tilted it's aspect to the sun to predict growing season start. Though the pointy-headed little liberal bastard still managed to crack his car's engine block this winter because he had a small radiator leak he did not know how to fix and kept replacing the lost antifreeze with freshwater. A Yale man would know better. Definitely a RPI or MIT guy.

Contrasted with the Madison crowd that believe the seasons are an ancient white racist conspiracy meant to hold the black man back in the tropics where it was warm.

I'll repeat what struck me the most: (Laughter). Why is it funny that a Supreme Court justice is ignorant of the most rudimentary aspects of science in a case he's deciding? It's all very nice that Scalia owned up to his ignorance, but why the laughter?

My guess is that other than the baliffs, the press, and the environmental activists, everyone in the room had an IQ greater than 120...and none of them knew about no stinkin' tropospheres, either!

Hence the laughter.

Der Hahn said...

Shorter, blunter Scalia (is that even possible?) "A sh**storm of technical jargon is not a legal argument."

It's absolutely amazing that you lefties keep arguing this exchange shows Scalia's 'scientific ignorance'. I doubt that Massachusetts mouthpiece has any more technical knowledge of the subject. He just knows the jargon.

Der Hahn said...

"knows" in last line of the preceeding comment should be taken to mean "barks it like a trained seal".

Simon said...

MadisonMan said...
"I'll repeat what struck me the most: (Laughter). Why is it funny that a Supreme Court justice is ignorant of the most rudimentary aspects of science in a case he's deciding? It's all very nice that Scalia owned up to his ignorance, but why the laughter?"

Because it's a distinction that's irrelevant to the case, which makes the attorney's point a cheap "gotcha" gag rather than a serious point. Most people do not object to calling the Boeing B-52 the "Stratofortress" on the grounds that technically it should be a "tropofortress." When most people use the term "stratosphere," they simply don't have in mind the technical definition of the term, they aren't referring specifically the layer of the Earth's atmosphere just above the Troposphere and below the Mesosphere, situated between about 10 km and 50 km altitude above the surface at moderate latitudes. They just don't, MM - they mean "high in the sky," or perhaps "the upper atmosphere."

As to "the most rudimentary aspects of science in a case he's deciding," this case doesn't strike me as being primarily about science, rudimentary or otherwise. This case is first and foremost about standing (more specifically, the redressability prong of Lujan: frankly, if the opinion the court even mentions climate science it will have been wrongly-decided, IMO, since this is plainly public law litigation; even assuming injury in fact and even assuming a causal nexus, there is no redressable injury), and secondly about whether the plaintiffs have done enough to overcome Chevron. I don't need to work out the mechanism of global warming to decide those questions, and I don't understand why you think the Supreme Court needs to.

MadisonMan said...

This case is first and foremost about standing

I don't know anything about standing.

(laughter)

I'm not doing a great job of explaining why this affects me like it does, but maybe the above helps. Did anyone actually laugh on reading my words? Why not? It's the same type of thing.

I'm viewing this more generally than words spoken by Scalia. It's a commentary on general scientific knowledge (or the lack thereof).

RogerA said...

MM--that helps!

Simon said...

MM - standing is relevant to every case, while climate science may not even be relevant to this specific case, depending on how you look at it. So the two aren't really comparable.

Something else to consider: recall that you're reading a transcript. We don't know the tone of voice or the facial expressions, hand gestures and so forth. Plus everyone in the courtroom is fully aware that Scalia is ranked by the NYT the funniest Justice, and so by the power of suggestion, perhaps everyone in the courtroom is primed to laugh at his little quips.

PoNyman said...

I can see madisonman's point, but I think that the laughter comes about because of who the audience is. Your joke about not knowing about standing on a law blog will probably get more eye rolling then laughs whereas if you were on the Daily Show or at a conference on climate change you might get a good laugh. The implication being stupid lawyers...standing, schmanding just do the stinking right thing.
Since these people were in a court room there may have been a certain understanding about the law, but less so about meteorology which is along the same lines as Simon was saying.

Freder Frederson said...

That's pretty silly -- filling the room with any gas other than oxygen would kill everybody inside very quickly, but does that make nitrogen (which makes up 80% of the atmosphere) a pollutant?

Actually, you are wrong, and as much as I hate to admit it, Scalia was right on this point (and btw nitrogen makes up about 78% of the atmosphere). CO2 is not dangerous simply because it displaces oxygen, it is toxic all by itself. At concentrations of less than 1% it can cause headaches and lethargy. At concentrations of around 5% (where oxygen concentrations will still be around 20%, still plenty high enough to breathe), it is lethal for humans. If you watch those submarine movies where the crew is slowly suffocating, it is not the lack of oxygen, but the buildup of carbon dioxide that is killing the submariners.

Richard Dolan said...

MM says: "I'll repeat what struck me the most: (Laughter). Why is it funny that a Supreme Court justice is ignorant of the most rudimentary aspects of science in a case he's deciding?

What was funny was that Scalia was poking fun at himself (and perhaps others, as Simon suggests). That's not the norm for the high and mighty in DC, let alone in a forum where levity is unexpected. So lighten up a little and cut Scalia a little slack.

The issues in the case are routine, even if the context is not -- statutory interpretation and standing mostly. Basically the EPA has decided that CO2 is not a pollutant within its jurisdiction, and even if it were, the EPA has declined to issue any rules or regs dealing with CO2. The standing issue turns on whether any of the plaintiffs has suffered or is about to suffer an actual concrete injury, and whether there is any redress they could possibly obtain in this suit for any injury they might have suffered (that's the "China/India" factor that came up in argument). The statutory interpretation issue turns on whether CO2 is a "pollutant" for purposes of the Clear Air Act or whether anything else in NEPA requires the EPA to issue the CO2 rules that the plaintiffs demand.

It's easy to see why an agency like EPA would want to stay out of the global warming fracas without some specific statutory mandate, and also why the many uncertainties here would incline the Court to go along with the EPA's view. Normally, a court will accept an agency's interpretation of the statute the agency is charged with enforcing, provided that the agency's reading is not at odds with the plain meaning of the statute. That rule certainly seems to fit here, particularly since the key statutory terms are vague and general.

Nor is Scalia the first judge to take note of the lack of scientific expertise on the part of the judiciary. Back when the EPA was young (it was another gift of the Nixon Admin that just keeps on giving, at least to lawyers), I remember a few law review articles discussing the issue of whether judges should be entitled to technical or scientific clerks the same way they are entitled to hire law clerks. In particular, I recall an article by the late Judge Harold Leventhal of the DC Circuit, musing about that topic (among others) as he contemplated the brave new world of administrative law that was just then dawning. Leventhal's court had issued a number of landmark rulings in the late 60s/early 70s dealing with agency regulation of various aspects of the environment, and he had a particular interest in the field. What is most striking about that era today is the naive optimism with which so many of the players (Leventhal included) approached the issues. How odd it would be today to hear someone seriously defending the idea that expert agencies, under the close scrutiny of expert courts, can solve all of these highly complex, multi-variabled problems. Complexity and chaos never seemed so simple. If only life were like that, or our knowledge so vast as to make it possible. As one wag recently noted, just look at the wonderful success the Feds have made of the ecology of Yellowstone, and of forest management generally, both of which are simple problems in comparison.

Scalia probably remembers that era, too, and may find plaintiffs' arguments to be reminiscent of a mindset that is even funnier than the little joke he was telling on himself.

Smilin' Jack said...

But I always thought an air pollutant was something different from a stratospheric pollutant...your assertion is that after the pollutant leaves the air and goes up into the stratosphere it is contributing to global warming.

If this case isn't about science, then why is Scalia talking about science? And if he's going to talk about science, shouldn't he have at least a basic grasp of the vocabulary? (BTW, any high school graduate should have at least a general idea of the difference between stratosphere and troposphere.) And if he doesn't know the vocabulary, shouldn't he refrain from using words he doesn't understand?

Sounds to me like he needed a few more classes with Prof. Kingsfield.

Ruth Anne Adams said...

Gee, Simon, did you oversleep? Her post went up at 7:14 a.m. and your first comment didn't hit until almost 4 hours later. What gives, old chap?

Hugo Black said...

Incidentally, between not getting any Pizza and not hearing Ann lecture about "bong hits for Jesus," the meeting this afternoon was a bit disappointing. Can we have a "do-over" in which you do lecture about bong hits and we actually get alot of pizza?

reality check said...

I think, implying that he needs to defer to the EPA's decision about what the Clean Air Act covers. How can he possibly have a better view of it? He's not a scientist.

Courts seem to decide on scientific matters all of the time, don't they?

Perhaps if we live in a technological scientific world it is stupid to require that a judge be an attorney at times when they should have an understanding of science.

How many Supremes are there? And there is no room for a medical doctor, engineer, or scientist?

(In defense of Cheney's Justice Vafanculo, Milkey's brief never uses the word "troposphere" and does use "stratospheric" five times.)

Revenant said...
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Revenant said...

The fact that we'd all die if the CO2 was removed from the troposphere proves it isn't an atmospheric pollutant.

It may very well heat up the planet, but that doesn't make it a pollutant. Sunlight heats up the planet, too -- does anyone think sunlight is a pollutant?

Seven Machos said...

Madison Man -- No one is calling scientific ignornance is funny. Nor is judicial ignorance funny. Nor is plumbing ignorance funny, as I can personally attest to you after having irritating problems in this beautiful old building I live in.

You can only know so much about so much. That's the human condition. We can only be the best and the brightest in a limited arena, even the best and brightest of us.

HaloJonesFan said...

"Berlau also contends...that medium-priced station wagons are no longer made because govt. restrictions have made them uneconomical to manufacture."

Ahem. That's a big not. Medium-priced station wagons aren't manufactured because the profit margin on SUVs is higher, and SUVs are targeted at the same demographic as medium-priced station wagons.

Although Berlau is somewhat right; the government's refusal to reclassify SUVs as "cars" instead of "light trucks" means that they get a massive tax break on emissions standards. If an SUV were held to the same standards as a car, it would cost ten to fifteen thousand dollars more...

MadisonMan: Scalia is not claiming scientific ignorance. He's saying that the scientist's insistence on minutiae and terminology is irrelevant to the case.

hdhouse said...

Am I to take it that if "he doesn't want to deal with it because he knows nothing about it"....then what other areas of NON-expertise does he "have to deal with" and does.

do we deserve a supreme court member who just shrugs his shoulders when confronted with an issue set he doesn't understand...and then what..:

listens with half interest?
pre-judges that it isn't of interest to him, therefore the court, and therefore should be settled elsewhere?
Dispatches his decision just to get it off his plate and on to someone else?

The courts are supposed to be apolitical...and he wants to put decisions out of the apolitical atmosphere and back into the land of cronyism and political mischief.

It is lazy, sullen, and dismissive statements like these that cause Americans to abandon all hope.

Richard Fagin said...

Can someone please tell me how Massachusetts got standing to sue in the first place?

Simon said...

Richard, I don't see how they satisfy the redressability prong of Lujan, so I'd have to say that they don't, even being generous in our assumptions on other prongs.

HDhouse, you're an idiot; you complain that Scalia "doesn't understand" global warming, and you complain that "[t]he courts are supposed to be apolitical...and he wants to put decisions out of the apolitical atmosphere and back into the [political sphere]."

Decisions about global warming, whether and how to take steps to deal with it are political decisions which reside within the purview of the political branches, and about which the political branches have made decisions. That you disagree with those decisions is a good reason to amend the Clean Air Act (funny that we don't see any bills in this new, Democratic Congress clarifying the CAA, given that this entire lawsuit is moot if Congress does so), and it's a good reason to vote for an administration whose EPA will promulgate different rules, but it's not a basis for a lawsuit. The essentially political nature of such questions, and the availability of political fora for their resolution, is one reason why courts defer to agency judgment. The other is precisely because (as you observe) courts are inexpert on many subjects, which is one of the reasons they defer to expert agency judgments, per Chevron.

It's not courts adhering to their proper role that causes a problem, but rather, courts arrogating to themselves the power to overturn democratically-made political decisions "that cause Americans to abandon all hope" in the democratic process. Why participate, why have hope, when a few zealots will seek to re-fight in an indulgent court those issues they could not prevail on in the political process?

This issue is exactly like DADT; if democrats really believed this stuff, they could amend the Clean Air Act tomorrow; indeed, they'd probably have enough votes at this point to ram it over Bush's veto, even if he used it. The question you should be asking is why they won't.

Ann Althouse said...

Richard: The Supreme Court needs to decide whether Massachusetts has standing. I think the answer should be no. The analysis rests on whether it has an imminent, concrete and particularized injury that is fairly traceable to the EPA's decision not to view itself as empowered to regulate, and that would be redressed if the state is successful here. Since the EPA has already written that if it did have the power to regulate, it would still exercise its discretion and decline to regulate, it's clear that success in this lawsuit would not redress the injury. And it's clear before you even get to the question whether the EPA could come up with regulations that would avert the injury of global warming (or get to the question whether global warming is sufficiently imminent and whether it is particularized with respect to the state).

Revenant said...
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Revenant said...

Halo,

If the reason SUVs are made and station wagons are not is, as you claim, that SUVs are avoiding government regulations that made station wagons cost much more, that means that the statement "government regulations made station wagons uneconomical to produce" is true.

Richard Fagin said...

Thanks, Simon and Prof. Althouse. That's what I thought, but my perception is that the enviros seem to get a pass on the standing requirement. You would have thought the district court would have dismissed the case for lack of standing (if they hadn't in fact done so).

Standing is one of the more important jurisdictional doctrines because it prevents the courts from being used to settle what amount to political disputes (which Massachusetts' claim here clearly is).

Richard Fagin said...

That and I can't tell you how many patent licensees have been burned because their license agreement didn't compel the licensor/patent owner to join as a plaintiff in a suit to enforce the patent, or how many patent co-owners discover to their shock that they can't sue to enforce the patent without joining all the other owners as plaintiffs. Less than all the ownership interests have......no standing. Kind of a touchy subject with me!

Simon said...

Richard Fagin said...
"Standing is one of the more important jurisdictional doctrines because it prevents the courts from being used to settle what amount to political disputes (which Massachusetts' claim here clearly is)."

I agree - it's "a key factor in dividing the power of government between the courts and the two political branches." Vermont Agency of Natural Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 771 (2000). Still, as a pure matter of cynical realism, I suspect that it's true that "it does not matter so much how many doctrines stand in the way of litigation. What really matters is the degree of incentive that courts feel with respect to taking on a particular sort of case. If there is strong incentive, no number of doctrines will prevent access – as Baker v. Carr teaches. If there is no incentive, one doctrine, even one prong of one doctrine – as Allen v. Wright teaches – will be enough." Althouse, A Response to Professor Woolhandler's "Treaties, Self-Execution, and the Public Law Litigation Model, 42 Va. J. Int'l L. 789, 798 (2002). That being the case, don't get your hopes up for this case.

"[M]y perception is that the enviros seem to get a pass on the standing requirement."

Sometimes they get away with it, sometimes not. Compare Lujan and Vermont Agency, supra, with Friends of the Earth v. Laidlaw, 528 U.S. 167 (2000). In the past, it's turned on Justice Kennedy's vote, which means we're in for more of the same for the foreseeable future, I'm afraid, which doesn't bear well for my hopes of for this case.