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Thursday, April 05, 2007
Law - More on standing and the global warming decision
A finding that Massachusetts had standing to complain about EPA's failure to regulate greenhouse gases was essential to the Supreme Court's decision this week in Massachusetts v. EPA. Tony Mauro of Legal Times writes today about how a "Century-Old Case Play[ed] Role in Justice Kennedy's Global Warming Swing Vote." The case is, as Mauro writes:
Georgia v. Tennessee Copper Company, a completely obscure decision written by Justice Oliver Wendell Holmes Jr. just shy of a century ago. Holmes ruled that Georgia had standing to complain about the Tennessee company's noxious emissions that resulted in a "wholesale destruction of forest, crops and orchards" in Georgia land just across the border from Tennessee."The case has been argued largely as if it were one between two private parties; but it is not," Holmes wrote. "This is a suit by a state for an injury to it in its capacity of quasi-sovereign. In that capacity the state has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain."
That precedent was the key to Stevens' finding that Massachusetts -- which complains that global warming is shrinking the state's coastal land mass -- had standing to complain about the EPA's failure to regulate greenhouse gases. Roberts complained in a footnote that Tennessee Copper has "nothing to do with" the standing issue, and Stevens makes the link in a footnoted reply.
What does the squabble have to do with Kennedy? It turns out that none of the dozens of briefs in the global warming case even mentioned Tennessee Copper. But Kennedy did, during oral arguments last November. He asked assistant Massachusetts Attorney General James Milkey what his best case for state standing was, and while Milkey was pondering an answer, Kennedy suggested Tennessee Copper might be the one. [ILB - see p. 15, line 9-12 of the official transcript.]
That mention must have sent Stevens and Roberts to the library in search of the best way to spin the Tennessee Copper case to win Kennedy over. Stevens won the beauty contest, Kennedy voted his way, and the rest is history.
Posted by Marcia Oddi on April 5, 2007 01:19 PM
Posted to General Law Related