The following is a guest post written by Sean Siperstein, who maintains the blog Warming Law on behalf of the Community Rights Counsel, a public interest law firm in Washington, DC. Warming Law was launched following the Supreme Court's landmark Massachusetts v. EPA ruling, with a focus on the evolving legal landscape impacting the climate movement.
In last week's negotiations over the energy bill, one of the most significant victories for proponents of getting serious about global warming came when Speaker Nancy Pelosi stood up to yet another attempt to short-circuit efforts by over a dozen states to demand cleaner cars.
The issue on which Pelosi convinced Rep. John Dingell (D-Mich.) and other auto industry allies to back down, known in legal circles as "preemption," has emerged as a lightning rod in global warming politics. The focus on preemption has only intensified in the wake of the Supreme Court's ruling this April in Mass v. EPA, recent developments in the states, and the current confused state of Supreme Court preemption law.
Things could get better or worse depending how the Court disposes of a case that was argued on Tuesday. On its face, Riegel v. Medtronic, about liability for faulty medical devices, doesn't have anything to do with global warming. It could, however, be a turning point in preemption doctrine, and thus have a significant long-range impact on the global warming/federalism/politics mix.
The Legal and Political Landscape
My boss, Doug Kendall, noted the dynamic at stake back in May, in a Knight Ridder op-ed assessing the potential impact of Mass v. EPA
It is a dirty little secret that industry dislikes federal environmental regulation more than anything -- except a patchwork of regulation at the state and local level. We learned this several decades ago, when industry fought the federal Clean Air Act tooth and nail until it became clear that, absent federal legislation, states were going to take matters into their own hands.
The lesson of these early fights is that industry is more motivated by fear than science. Like the impacts of air pollution in the 1960s, the science of global warming has long been sufficiently clear to warrant a federal response. What has been lacking is a credible threat that industry would be worse off without one.
That changed when the Supreme Court ruled in favor of Massachusetts. Previously, industry had reason to think that it would succeed in frustrating meaningful action at the state and local level through litigation. In the aftermath of the landmark decision, and in light of ever-rising public pressure to get serious about global warming and move toward a clean-energy economy, a rising tide of state actions and legal setbacks have left defenders of the status quo reeling.
States are often described as the laboratories of American democracy, and Mass. v. EPA has fostered a surge in new state global warming initiatives and bolstered existing ones. To give one of the most prominent examples, Republican Governor Charlie Crist of Florida responded with executive orders adopting California's auto emissions program and setting a goal of reducing the state's greenhouse gas emissions by more than 80 percent by 2050. Just this week, Maryland Governor Martin O'Malley announced an even more ambitious plan, aiming for a 90 percent drop by 2050.
The Supreme Court's decision has also been enormously helpful to states defending their greenhouse gas emissions laws against industry challenges. Federal Judge William K. Sessions' 240-page ruling in Vermont, which eviscerated the argument that state efforts are preempted by existing federal law, heavily cited Mass v. EPA; a recent hearing in the industry's preemption lawsuit against California indicated that the judge there has also been moved by the Court's reasoning.
Thus we're now at the stage where the industry is terrified at the rising tide of state action and court defeats, and seeking some kind of federal preemption has become its key issue. In the courts, this meant that the Vermont court ruling was swiftly appealed, with industry signaling its seriousness (and subtly admitting it needs some top-flight help) by hiring Kathleen Sullivan, a noted Supreme Court litigator and former dean of Stanford Law School.
We've also seen this dynamic play out in energy bill negotiations, where the biggest sticking point between Dingell and Pelosi was whether California standards would be preempted or not. In response to the deal they struck, industry surrogates accustomed to lying exaggeration now suggest that the upcoming energy bill should satisfy states' thirst for action. The states are rightly pressing ahead, insisting on a regime that sets a clear national standard while giving them breathing room for the kind of future innovation that will continue to push things forward.
In helping states ramp up and defend their own responses, the Court's ruling in the case it heard Tuesday has an opportunity to further alter the legislative debate at the federal level. Over the years, the Court has developed a bewildering array of doctrines that invalidate state laws and programs without any clear evidence that they are incompatible with state law. These are the rulings that gave industry so much comfort before Mass. v. EPA.
While Mass. v. EPA and certain more recent preemption cases have suggested that the Court's approach might be changing for the better, a strong statement on preemption in the Riegel case could clarify the Court's position, and resolve ambiguities in favor of the kind of bold state experimentation needed to rise to the challenge of climate change.
That's why Community Rights Counsel, which focuses on environmental law, filed a friend-of-the-court brief in Riegel. CRC's Chief Counsel, Tim Dowling, provided an overview of the case's specifics and our argument back in August after the Court agreed to hear Mrs. Riegel's appeal.
In Riegel, the medical device industry (represented by former Solicitor General Ted Olson, whose firm also represents the auto industry in its global warming lawsuits) joined with the Bush administration to argue that federal laws and regulations on product safety pre-empt consumer lawsuits filed against medical device manufacturers under state common law.
CRC's brief argues that, to the contrary, binding precedent requires a standard for express preemption that strongly defers to state and local laws aimed at promoting public health, safeguarding the environment, and protecting our communities. During oral arguments, the lawyer for Mrs. Riegel, Allison Zieve of Public Citizen, convincingly argued that while the 1976 law being debated does preempt many state regulations, overruling lawsuits in state courts was not explicitly part of the law and was certainly not the intention of its authors (Senator Ted Kennedy, the lead author of the Medical Device Amendments, filed a brief siding with the Riegels).
As the esteemed Linda Greenhouse reports in the NY Times, the justices' statements yesterday left no clear indicator of what might guide their decision. While several justices appeared wary of the implications of allowing lawsuits, there also seemed to be not-insignificant skepticism about leaving the issue entirely in federal hands. And the plaintiff's express preemption argument was not significantly undermined.
The Court is expected to rule within the next several months.
What the Court Should Do
Recent events have strengthened the hand of those pressing for more serious action at all levels to combat global warming pollution, but on their own they don't necessarily constitute a breakthrough. Industry is doing everything in its power, in court and in Congress, to rid itself of the threat of state action.
Climate activists will need state leadership for the foreseeable future, and need to be equally vigilant in resisting legislative preemption. The Supreme Court could help by using the Riegel case to apply a "clear statement" rule, requiring that Congress be clear and unambiguous if it intends to invalidate state or local laws through preemption.
This standard would provide states and environmental groups compelling arguments against industry claims of preemption in global warming litigation, and pave the way for California's clean cars program and future innovative efforts. The Supreme Court has often talked about the importance of states of "laboratories" of democracy; it's high time that it backed those words up with concrete action.