May It Please The Court: Weblog of legal news and observations, including a quote of the day and daily updates
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Quote of the Day - When you say that you agree with a thing in principle you mean that you have not the slightest intention of carrying it out in practice.
Supremes Hand USEPA the HammerFederalism reigns Supreme. Supreme Court that is.In a riveting, 61-page opinion, the Supreme Court ruled that the U.S. Environmental Protection Agency can overrule state courts when ordering anti-pollution measures, even if they entail increased costs. What? Well, look at it this way: the USEPA has final authority over the 50 states when it comes to air pollution, even if it means that the cost to implement pollution control devices is expensive. Same thing, different way. The Clean Air Act gives initial authority to the states to regulate pollution control devices, but allows the USEPA to look over the states' shoulder. When the USEPA thinks the state is being too lenient, it can step in and order that the pollution control devices be installed, without regard to cost. Big decision, big cost. Not good news for industries, but good news for environmentalists. What? I Have To Pay For My Electricity?If you live in Italy, you can seek compensation for electrical blackouts.What a deal! Now just what is the statute of limitations on that one? Perhaps some enterprising lawyer in California has filed suit against the utilities that sponsor rolling blackouts like they sponsor baseball fields (well, not anymore). Imagine the possibilities. Instead of my meter running backwards, my bank account would run forward. But, like the Ohio power blackout late last year, our blackouts would be solved if we could just get Ronco products off the air. Is Your Chocolate Heavy?Is there more than just naturally occurring lead and cadmium in your candy bar? One group wants us to think that the question is still up in the air. Maybe it was never a problem in the first place.According to Prop 65 News, the nation's major candy companies settled a Proposition 65 warning lawsuit with American Environmental Safety Institute for just $20,000. Prop 65 is a California creation, designed to require warnings to consumers when levels of toxic chemicals might cause cancer or reproductive harm. According to this article, the allegations were very serious, and AESI alleged that lead was "clearly" in the chocolate. When all was said and done though, Prop 65 News reported, "No penalties or attorney fees were awarded and the deal, which was the result of the defendants’ "offer to compromise," did not require the companies to warn customers of lead or cadmium exposures." Maybe the allegations were all a mistake. Or maybe they were just designed to get money. You be the judge. You can look at AESI's chocolate page, and the candy association's response. The California Attorney General had this to say: AESI's claims "lack merit." Watch Where You Walk - It Could Blow UpHere's sneak peek at a sobering set of facts: removing unexploded munitions and hazardous waste found so far on 15 million acres of closed U.S. military ranges could take up to 330 years at the current rate of spending, according to congressional auditors.There are 39 million acres in all where unexploded munitions could be. In a not-yet released report to members of Congress, the Government Accounting Office said the Department of Defense has not yet assessed three-fifths of the 2,307 potentially contaminated sites identified as of September 2002 and has finished cleaning up only one percent of them. Some of these areas have already been redeveloped for homes and parks. Boom! But there could be many more sites with contamination, according to the GAO. Though the Navy and Air Force examined their sites, the Army had only looked at 14 percent of its installations, or 105 ranges, as of last year, the GAO said. If you're wondering whether you live or work on one of these sites, you can look at the list. As if you didn't feel good about it already, an anonymous government source said the Army plans to add another 500 sites to the list. What's there? The biggest contaminants that have been found are TNT, RDXand HMX explosives, perchlorate used in rocket fuels and white phosphorus. TNT and RDX are possible human carcinogens; HMX causes potential liver and central nervous system damage, animal studies suggest; perchlorate can cause thyroid disorders; white phosphorus can damage reproductivity, the liver, heart and kidney. Make sure you click on the HMX link - it's a web site created by a 10th grader as part of his science project. The Army Corps of Engineers is in charge of the cleanup. They just don't have enough money to finish the cleanup anytime soon. Things are so bad that even the detailed assessment of these sites won't be finished until 2012. An Uncharacteristic Rant - Way Too Many AdsAren't there enough ads already? I flew back from a client meeting this afternoon on America West, and after we had gotten through the standard safety speeches, demonstrations and did-your-mother-send-you out-with-holes-in-your-underwear checks, I settled in.In coach, next to a burly guy who felt he needed part of my seat until I invited him to move over and leave an empty seat between us. Then to be interrupted by the captain who had his pitch to make and thank-you-very-much-for-flying-with-us-today jingle. Only to be greeted by the cackling stewardess' voice who promptly reminded me that my tray back should be in the upright and locked position for takeoff, that the captain hadn't yet turned off the fasten seat belt light and that because the flight was so short there would be an abbreviated cabin service this afternoon, thank you very much. Then the guy in the middle showed up, bigger than both me and the guy by the window, and no empty seats elsewhere. At least the airlines are making money with full flights. Apparently, though, things have gotten so bad that they now have to sell more ads. On the plane. You'll never guess where. On the top of the tray tables when they're folded down. Mine encouraged me to watch the History Channel's new mini-series, The Barbarians are Coming. I won't have to though. He was seated next to me for the hour-long flight. I already saw that movie and got that T-shirt. Clean Fleet Rules May Likely Go Down in FlamesThe Supreme Court heard arguments on one of several other big environmental cases yesterday. Engine Manufacturers Association v. South Coast Air Quality Management District is a dispute between - well the names say it all.The EMA, together with the Western States Petroleum Association (and several other organizations) sued the SCAQMD over the District's rules that new commercial vehicles have to meet specific emissions standards. The 1190 series of rules (see one set of rules that encompass light and medium duty vehicles here). That last link also features a list of certified car engines, so you can see whether your car complies. Just be glad you don't own a fleet if your car's not there. These so-called "Clean fleet rules" mandate use of engines that have lower emissions to improve air quality. The rules require fleet owners to purchase low-emission or alternative-fuel vehicles. The various trade associations argue that District's Clean fleet rules require engine manufacturers to create a "third car." The rules require vehicle to meet the specific regulations in Southern California (as opposed to Northern California, and the rest of the country), and are the strictest rules for vehicles. See the EMA brief and Chamber of Commerce brief, too. The Western States Petroleum Association likely wants its members to be able to sell more fuel. Even the Department of Justice filed a brief against the SCAQMD. Several environmental organizations filed a brief in support of the District. Much is a stake, such as the SCAQMD's right to regulate emissions standards. So far, the District has won twice - once in Federal District Court, and once before the Ninth Circuit. All indications are, however, for reversal. That result is not surprising given that the Ninth Circuit's reversal rate, as noted by the Curmudgeonly Clerk. Everybody's got something to say on this case, and there are so many comments that I can only give you a smattering: the WSPA, SCAQMD, the District's lawyers, the Federalism project, the Diesel Technology Forum, and even TomPaine.com. All of us here know it, but the LA air basin is the worst in the country. Looks like it may stay that way a while longer. Another Snowmobile Defeat in YellowstoneThere are not as many snowmobiles in Yellowstone National Park this year, as I've noted here several times before. Snowmobilers wanted more access, and environmentalists wanted less snowmobiles in the Park, arguing that they caused unnecessary pollution.U.S. District Court Judge Emmett Sullivan invalidated Bush's plans and ordered the National Park Service to go back to Clinton-era numbers of authorized winter machines. Sullivan sided with the Fund for Animals and the Greater Yellowstone Coalition. Snowmobilers are obviously not happy. Neither are the State of Wyoming, the International Snowmobile Manufacturers Association and the Idaho-based Blue Ribbon Commission, an advocacy group for motorized recreation, who have filed appeals. Also, the Department of Interior has filed notice of its intent to appeal. In another setback yesterday, the District of Columbia Court of Appeals refused to stay Judge Sullivan's decision pending the outcome of the appeals. Click here for a copy of the decision. Snowmobiles are still out of bounds in the Park. Florida Polluted Water Has Nationwide EffectWhere do you put polluted water? If you're the South Florida Water Management District, you dump it in the Everglades ecosystem. The SFWMD acknowledges that the water it pumps (at the rate of 423,000 gallons per minute) into the Everglades is polluted, but it claims it has nowhere else to put it.Makes sense, doesn't it? The pump sits on a more than 90-mile long levy system that serves as the border between the Everglades and suburbs stretching from West Palm Beach to Miami-Dade County. To the south is the 666-acre reservation where many of the 500-member Miccosukee Indian tribe live. To add insult to injury, the water is polluting 189,000 acres of land the state leased to the tribe and promised to keep in its natural state. Runoff from yards, agricultural and industrial areas contains fertilizers that have high levels of phosphates. The pollution changes the water chemistry, killing some native plants and allowing other nonnative plants - such as cattails - to thrive. Chief William Buffalo Tiger first noticed large quantities of snakes dying when the pumping started in 1957. My calculator doesn't have enough decimals to do the math to determine how many gallons have been pumped since then. The Miccosukees and an environmental group, Friends of the Everglades, sued the water management district in 1998 under the Clean Water Act. They argued that water managers need a federal permit to pump polluted water into the Everglades, where it would not otherwise flow. The United States Supreme Court will hear arguments on the case tomorrow. The outcome will have far-reaching effects, going far enough to cause water agencies to treat polluted storm water runoff before rerouting it. In California, that could mean billions to treat storm water before it hits the ocean. Ironically, Florida and the federal government are embarking on a 30-year, $8.4 billion project to restore the natural water flow through the Everglades. The SFWMD plans to treat the water being pumped first. Good thinking, but a little late.
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