Legal Briefing: Obama Backs Utilities Over States in Climate Change Case

A daily look at legal news and the business of law:

Obama Sides with Utilities over States in Climate Change Case

Eight states, New York City and three groups persuaded the Court of Appeals for the Second Circuit to allow them to sue greenhouse-gas emitting utilities as a public nuisance, a major victory based in part on the Environmental Protection Agency's failure to regulate carbon dioxide. The utilities appealed to the Supreme Court, and their efforts to persuade the Court to hear the case and overturn the decision got a big boost when the Obama administration joined their effort, filing a brief urging the Court to take the case, vacate the decision and send it back to the Second Circuit.

Because the Supreme Court hears a small fraction of the appeals made to it, and because Solicitors General have a significant influence on the Court, the Obama administration brief is a big help to the utilities. Because the administration could have stayed out of the fight rather than pick sides, an attorney for the plaintiffs said, "We feel stabbed in the back...With friends like this, who needs enemies?" An attorney for the utilities crowed elatedly, "We're certainly happy with it...They could have stayed silent. The fact that they've spoken out is significant, and we're happy about it."

The Obama administration argues that since the opinion was issued, the EPA has begun regulating carbon dioxide, and one national system of regulation is better than letting appeals courts set differing standards in different parts of the country.

Interestingly, the plaintiffs may agree that judicial regulation is not good policy per se. The threat of lawsuits and the hodgepodge regulation that would result could nonetheless be a strategic hammer to force Congress to enact comprehensive climate-change regulation. Congress has already shown it lacks the will to take such action, but perhaps with industry clamoring for rules to override judicial decisions, Congress would find the strength to act.

As if the states didn't have enough to be upset about, law professor Jonathan Zasloff calls the administration's brief "worse than you think" because it argues for more than necessary to help the utilities, and if the Supreme Court adopts its view it will make it harder for states to file similar suits in the future.

FCC Wants its Indecency Rules Back

The Court of Appeals for the Second Circuit recently struck down the Federal Communication Commission's fleeting expletive indecency rules. Rather than simply accept the decision, the FCC has asked the court to reconsider or to have the full court, rather than a panel of three judges, decide the case anew.

I'm sure the FCC's preference would be for the full court to hear it, as the panel has already ruled against the FCC twice in the case, striking down the fleeting expletive policy both times, most recently because it was unconstitutionally "vague". Whatever the Second Circuit does, the case is likely to go back to the Supreme Court, which will likely to strike down the policy.

Clemens Arraignment Set for Aug. 30

Roger Clemens will face a judge for the first time in his perjury case on Monday, when Clemens is arraigned before Judge Reggie Walton of the D.C. District Court, reports the Blog of the Legal Times. Undoubtedly Clemens will plead not guilty. His trial isn't expected to start until next spring.