ACSBlog

  • September 27, 2016

    by Christopher Durocher

    As with so many fatal police shootings that have gripped the nation’s attention in recent years, there is much we do not know and may never know, about the circumstances surrounding the deaths of Keith Lamont Scott in Charlotte and Terence Crutcher in Tulsa.

    Videos from at least some sources have been released in each case, but leave critical questions unanswered and as with most such videos, what is shown is subject to interpretation.  What we do know is that Betty Shelby, the Tulsa police officer who fatally shot Crutcher, is facing first-degree manslaughter charges. And though the investigation into Crutcher’s death continues, Charlotte Mecklenburg Police Chief Kerr Putney has said that the officer who fatally shot him, Brentley Vinson, was “absolutely not being charged by me at this point.”               

    Almost regardless of what facts may come to light in each case, there is a sense among many that these deaths were avoidable. Explicit policing policies, such as stop-and-frisk and overly aggressive traffic enforcement, fall more heavily on communities of color and increase a person of color’s chances of being forced to interact with law enforcement. Tracey Mears, a professor of law at Yale, who is among the speakers tomorrow on a conference call ACS is hosting on police use of force, asserts that “[t]here is evidence strongly indicating that policing in that way creates distrust between members of the community who are often disproportionately stopped this way and the police, in a way that is actually inimical to the goals of crime control.” In addition, implicit bias, which the President’s Task Force on 21st Century Policing acknowledged “is a widespread [problem] that arises from history, from culture and from racial inequalities that still pervade our society and are especially salient in the context of criminal justice,” can lead police to perceive a Black person as more dangerous than they would a white person in a similar situation. When you combine over-policing and implicit bias, along with other factors, they create a fatal recipe that increases the chance that police will use force and often lethal force, in circumstances that could have been resolved through de-escalation strategies. This, in turn, has contributed to the deaths of 305 Black people in 2015 and 195 deaths already this year at the hands of police—more than twice the rate of white deaths, per capita.       

  • September 27, 2016
    Guest Post

    In February, the Supreme Court of the United States stayed implementation of the Clean Power Plan, which provides the EPA with its best chance to cut future greenhouse gas emissions. On Tuesday, Sept. 27, the United State Court of Appeals for the District of Columbia Circuit will hear oral arguments in a consolidated case, known as West Virginia, et. al. v. EPA. This case will determine whether it is within the EPA’s power to regulate air quality by setting strict standards for carbon emission. ACS invited experts to explore the issues that will be presented before the Court.

    by Richard L. Revesz,  Dean Emeritus, Lawrence King Professor of Law and Director of the Institute for Policy Integrity at New York University School of Law; Denise A. Grab, Senior Attorney at the Institute for Policy Integrity at New York University School of Law and Jack Lienke, Senior Attorney at the Institute for Policy Integrity at New York University School of Law

    It may not have yet reached the level of fame of Carolene Products’s Footnote 4, but among the lawyers immersed in the Clean Power Plan, Footnote 7 in American Electric Power v. Connecticut has become something of a household name.

    In AEP v. Connecticut, the Supreme Court held that EPA’s authority to address greenhouse gases under the Clean Air Act—and section 111(d) in particular—displaces federal common law public nuisance claims against power plants. Footnote 7 is dicta that describes the limited circumstances under which section 111(d) does not apply.

    Four years after the decision in AEP, EPA used section 111(d) to issue the Clean Power Plan. Interestingly, both supporters and opponents of the Plan now argue that Footnote 7 supports their position. The dispute here boils down to an argument over whether the scope of section 111(d)’s coverage focuses on the particular pollutants being regulated or the source category as a whole (in this case, power plants).

  • September 27, 2016
    Guest Post

    In February, the Supreme Court of the United States stayed implementation of the Clean Power Plan, which provides the EPA with its best chance to cut future greenhouse gas emissions. On Tuesday, Sept. 27, the United State Court of Appeals for the District of Columbia Circuit will hear oral arguments in a consolidated case, known as West Virginia, et. al. v. EPA. This case will determine whether it is within the EPA’s power to regulate air quality by setting strict standards for carbon emission. ACS invited experts to explore the issues that will be presented before the Court.

    by Michael Burger, Executive Director of the Sabin Center for Climate Change Law; Research Scholar and Lecturer-in-Law at Columbia Law School and Justin Gundlach, Climate Law Fellow at the Sabin Senter for Climate Change Law

    Anthropogenic climate change is causing material harm to American communities and the Supreme Court has foreclosed all but one legal basis for federal regulatory action to address the greenhouse gas (GHG) emissions at its root. According to the Court’s decision in in AEP v. Connecticut, the Clean Air Act, which directs the Environmental Protection Agency to prevent air pollution from endangering public health or welfare, “displaces” common law remedies. EPA’s instructions under the Act as the Court has read it are, therefore, to address GHGs and to use the Clean Air Act to do so. To apply the Act’s requirements to existing power plants, the nation’s largest source of GHGs, EPA must interpret what is the “best system of emissions reduction” for that source category—for that is the key language in Clean Air Act section 111(d), which governs “standards of performance for existing sources.” EPA’s interpretation is embodied in the Clean Power Plan.

    We wrote an amicus brief on behalf of the U.S. Conference of Mayors, the National League of Cities and over 50 individual municipal governments to convey three key points to the court about climate change and the Clean Power Plan: one factual, one legal and one focused on what the court’s decision would mean for U.S. cities.

  • September 26, 2016
    Guest Post

    In February, the Supreme Court of the United States stayed implementation of the Clean Power Plan, which provides the EPA with its best chance to cut future greenhouse gas emissions. On Tuesday, Sept. 27, the United State Court of Appeals for the District of Columbia Circuit will hear oral arguments in a consolidated case, known as West Virginia, et. al. v. EPA. This case will determine whether it is within the EPA’s power to regulate air quality by setting strict standards for carbon emission. ACS invited experts to explore the issues that will be presented before the Court.

    by Tomás Carbonell, Director of Regulatory Policy and Senior Attorney at the Environmental Defense Fund

    Oral argument on the Clean Power Plan — the nation’s first limits on emissions of harmful climate pollution from fossil fuel power plants — will take place in the U.S. Court of Appeals for the District of Columbia Circuit on September 27, 2016. As the court reviews the most significant step our country has taken to address the threat of climate change, the need for action to reduce climate-disrupting pollution has never been more urgent: Louisiana recently became the fifth state in the span of 12 months to suffer from a “1,000-year flood.” August 2016 marked the 16th consecutive month that set a global monthly high-temperature recorded. The Clean Power Plan, which will reduce carbon pollution from power plants to 32 percent below 2005 levels by 2030 and generate $54 billion per year in climate and health benefits, is essential to reduce these risks.

    During oral argument, the court will hear powerful legal arguments for upholding the Clean Power Plan. The rule is supported by a broad and diverse coalition that includes eighteen states and sixty municipalities across the country; power companies that own and operate more than ten percent of the nation’s generating capacity; leading businesses like Apple, Google, Mars and IKEA; public health and environmental organizations; consumer and ratepayer advocates; faith organizations; and many others. Numerous legal experts — including drafters of the Clean Air Act, former EPA Administrators who served under Presidents Nixon, Reagan and Bush and former state energy and environmental officials — have also affirmed the strong legal basis for the Clean Power Plan. These supporters understand that the Clean Power Plan is both a crucial step to address climate change and fully consistent with the law.

  • September 26, 2016
    Guest Post

    In February, the Supreme Court of the United States stayed implementation of the Clean Power Plan, which provides the EPA with its best chance to cut future greenhouse gas emissions. On Tuesday, Sept. 27, the United State Court of Appeals for the District of Columbia Circuit will hear oral arguments in a consolidated case, known as West Virginia, et. al. v. EPA. This case will determine whether it is within the EPA’s power to regulate air quality by setting strict standards for carbon emission. ACS invited experts to explore the issues that will be presented before the Court.

    by Patrick Parenteau, Professor of Law at Vermont Law School and Senior Counsel, Environmental and Natural Resources Law Clinic

    EPA did a fantastic job crafting the Clean Power Plan to meet the mandate of the Supreme Court in Mass v. EPA to regulate emissions from the largest sector of carbon pollution in the nation, using the precise statutory authority (i.e. section 111(d) identified by the Court in AEP v. Connecticut. The Department of Justice has thoroughly demolished the arguments accusing EPA of exceeding its authority, trampling the constitution and usurping state sovereignty. Eminent scholars like Dean Emeritus Richard Revesz and his colleagues at the Institute for Policy Integrity have shown through exacting analysis just how solid the legal foundation is for the Clean Power Plan. The full DC Circuit should have no trouble upholding it as an eminently reasonable and critically necessary response to the existential threat of climate disruption. As a not insignificant co-benefit it will also go a long way towards protecting public health from the many other pollutants emitted by the dirtiest coal plants around the country.

    But as Yogi Berra famously said “It’s tough to make predictions, especially about the future.” There are many possible outcomes. The DC Circuit is not a monolith. Six of the ten active judges who will hear the argument were appointed by Democrats (four by Obama) and four by Republicans. That may give the government a bit of an advantage when it comes to affording Chevron deference on some of the closer questions of statutory interpretation but it is far from a rubber stamp. After all these are judges with intellectual integrity regardless of their political affiliation.

    As unlikely as it seems a decision invalidating the entire Clean Power Plan or even major parts of it such as the goal of increasing renewable energy by 28 percent by 2030, would deal a serious blow to the commitments made by the U.S. in the Paris Agreement which were instrumental in getting China on board and spurring greater action by India and other developing countries. After eight years of being AWOL in the international climate negotiations during the Bush Administration, the U.S.  is now seen as the major force leading the rest of the world by example towards higher ambitions for cutting emissions. Energy markets are moving rapidly in the direction of more efficient and cleaner energy systems. The International Energy Administration says that renewables are leading the world power market into the future. In the U.S., electricity demand is steadily decreasing as efficiency proves more cost effective than new generation. These trends are expected to continue with or without the Clean Power Plan.