Supreme Court Justice (nominated by Pres. Reagan 1986)
Don't lump all companies when evaluating carbon emissions
"You're lumping them all together," Scalia said of the five big power companies (who may have to cut down on the climate-warming carbon dioxide they emit). "Suppose you lump together all the cows in the country. Would that allow you to sue all those
farmers? I mean, don't you have to do it defendant by defendant? Cow by cow or at least farm by farm? And if you can lump all the cows together and claim they fuel global warming, you can lump together all the people in the US who breathe, I suppose?"
Justice Scalia joined the concurrence on Cheney vs. DC Court on Jun 24, 2004:
Court rules, 7-2, in the case of V.P. Dick Cheney v. U.S. District Court for the District of Columbia: The Sierra Club and Judicial Watch sued Cheney and his energy task force, which was made up of government officials and advised by executives in the energy industry, to try to make them reveal details about the group's meetings. Cheney said the group was shielded by the Federal Advisory Committee Act, which allows groups made up of government officials to keep the proceedings secret. The Sierra Club and Judicial Watch, however, said the executives were active enough in the group to be considered de facto members.
HELD: Kennedy, joined by Rehnquist, Stevens, O'Connor, Breyer
The court says the appeals court acted "prematurely" when it denied Cheney's request to keep confidential the details of his energy-task force meetings.
The Court ruled that the case should be returned to the lower court for a new decision on disclosure.
After the case was returned to the lower court, on May 9, 2005, the U.S. Court of Appeals for the District of Columbia ruled that the Vice President's Energy Task Force did not have to comply with disclosure.
CONCURRENCE: Concurring in part; dissenting in part: by Thomas; joined by Scalia
Clarence Thomas and Scalia would have had the case end there with Cheney not having to disclose any information.
DISSENT: Dissent by Ginsburg; joined by Souter
Ruth Bader Ginsburg was joined by David H. Souter in dissenting, arguing the Supreme Court should let the case proceed in the District Court.
Source: Supreme Court case 04-CHENEY argued on Apr 27, 2004
Clean Air Act displaced federal common law on CO2 emissions.
Justice Scalia joined the Court's decision on AMERICAN ELECTRIC v. CONNECTICUT on Jun 20, 2011:
Joined by the courts into one suit, eight states, New York City, and three nonprofit land trusts filed actions against five major electric power companies claiming their carbon dioxide discharges, by contributing to global warming, have interfered with public rights in violation of federal common law, or of state tort law.
HELD: Delivered by GINSBURG, joined by ROBERTS, SCALIA, KENNEDY, BREYER & KAGAN
Since four members of the Court hold that at least some of the plaintiffs have standing, though four others would find there is not standing, the Court will address the merits. Though a federal common law regarding air pollution has developed where once there was none, the passage by Congress of the Clean Air Act and the agreement of the EPA to regulate carbon dioxide emissions have occupied this field of law and have displaced the federal common law. The fact that the EPA has not yet issued rules does not allow the Court to issue decisions under the
federal common law that are binding until the EPA does act, since Congress has shown its intent to have the EPA make these decisions. The process the Clean Air Act sets out is that the EPA, using its expertise, shall issue in the first instance regulations. Parties dissatisfied with those regulations may seek review of the EPA's actions in the US Court of Appeals. The possibility of state law claims for pollution will depend upon the preemptive effect of the Clean Air Act. As the preemption issue was not briefed for this Court, the state law claims are remanded for further consideration by the lower courts.
CONCURRED: ALITO concurs; joined by THOMAS
Assuming for the purpose of this decision that this Court in Massachusetts v. EPA interpreted the Clean Air Act correctly, this Court's analysis of the displacement of federal common law by Congressional enactment is also correct.
Sotomayor recused herself.
Source: Supreme Court case 11-AE-CT argued on Apr 19, 2011
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