Archives: May, 2010

Big Global Warming Case Hinges on Weird Procedural Technicality

Nearly two weeks ago, I blogged about some strange procedural developments in the big global warming case coming out of the Gulf Coast, Comer v. Murphy Oil USA.  On the eve of final briefing deadlines before the en banc Fifth Circuit, an eighth judge of that court recused from the case (we don’t know the reason, but the previous seven recusals were presumably due to stock ownership) and so the court was faced with an unprecedented situation: losing an en banc quorum after previously having had enough of one to vacate the panel decision and grant en banc rehearing in the first place.  We were all set to file our brief when the Clerk of the Fifth Circuit issued an order notifying the parties of the lost quorum and canceling the scheduled hearing — and nothing more.  Out of an abundance of caution, we decided to go ahead with filing late last week.

Again, here’s the situation: Mississippi homeowners sued 34 energy companies and utilities operating in the Gulf Coast for damage sustained to their property during Hurricane Katrina. The homeowners alleged that the defendants had emitted greenhouse gases, which increased the concentration of greenhouse gases in the atmosphere, which contributed to global warming, which accelerated the melting of glaciers, which raised the global sea level, which increased the frequency and severity of hurricanes, which caused the destructive force of Hurricane Katrina. The district court concluded that it lacked the authority to resolve the public debate over global warming and dismissed the case. A Fifth Circuit panel reversed this dismissal, holding that the homeowners have standing to raise some of their claims and that those claims are appropriate for resolution by the federal courts. The Fifth Circuit then granted rehearing en banc.

Cato filed an amicus brief on the energy companies’ behalf, arguing that homeowners lack standing to bring their suit and that the case raises a nonjusticiable political question. Our brief asserts that the homeowners’ claim does not provide a clear causal connection between the harm suffered and any particular conduct by the energy companies, and that the money damages the homeowners requested would not remedy the environmental harm alleged. More importantly, we maintain that political questions such as those surrounding climate change must be resolved by Congress, not the federal courts. Put simply, the Constitution prohibits federal courts from resolving highly technical social and economic policy debates. Permitting plaintiffs to achieve “regulation by litigation” would not only contradict settled Supreme Court precedent, but would betray the separation of powers principles embodied in the Constitution.

The Clerk has since directed the parties to brief the procedural issues surrounding the apparent lost quorum, which letter-briefs came in this week (as a mere amicus, we did not file on this).  I’ll spare you the technical details, but there are three possible ways in which the Fifth Circuit could now rule: 1) the court actually does have a quorum and thus oral argument is resecheduled; 2) the panel decision is reinstated (with an ensuing cert petition appealing that decision to the Supreme Court); and 3) the district court is affirmed without opinion (the same result as when an appellate court vote is tied).  Stay tuned — this is a truly weird denouement to a hugely important case.

A Forceful Call For Change From El Paso

El Paso, TX is one of the safest cities in the country, but its residents are strongly identified with the human tragedy affecting their Mexican neighbors across the Rio Grande. El Paso shares a metropolitan area with Ciudad Juárez, México, arguably one of the most dangerous cities in the world, where over 4,000 people have been killed in the last couple of years.

This situation is something that the communities of El Paso and Las Cruces, NM want to change. On Monday, politicians, academics, civic and business leaders of both cities will hold an event calling for a “comprehensive revamping of the failed War on Drugs waged by the United States and other countries.” You can read the press release here.

Among other things, they

…advocate, as an important first step in drug reform, the repeal of the ineffective U.S. marijuana drug laws in favor of regulating, controlling and taxing the production, distribution, sale and consumption of marijuana by adults. The sale of marijuana in the U.S. black market contributes 50 to 70 percent of Mexico’s cartel revenues.

Last year the city council of El Paso passed a resolution calling for “an honest, open, national debate on ending the prohibition on narcotics.” Leading figures in the community have come to understand that the only way to tackle drug violence is by legalizing drugs, not by relying on conventional and unrealistic approaches, including tougher enforcement and sealing the border — alternatives that don’t resonate with a community so deeply intertwined with their Mexican neighbors.

As they meet at the White House on Monday, will President Obama and President Felipe Calderón of México hear the call for a change in drug policy coming from El Paso and Las Cruces?

Krugman and Libertarianism and Political Power

Paul Krugman has a post today titled “Why Libertarianism Doesn’t Work, Part N.” Maybe parts A-M were compelling, but it seems like there’s a big flaw in his logic today. Here’s the entire item:

Thinking about BP and the Gulf: in this old interview, Milton Friedman says that there’s no need for product safety regulation, because corporations know that if they do harm they’ll be sued.

Interviewer: So tort law takes care of a lot of this ..

Friedman: Absolutely, absolutely.

Meanwhile, in the real world:

In the wake of last month’s catastrophic Gulf Coast oil spill, Sen. Lisa Murkowski blocked a bill that would have raised the maximum liability for oil companies after a spill from a paltry $75 million to $10 billion. The Republican lawmaker said the bill, introduced by Sen. Robert Menendez (D-NJ), would have unfairly hurt smaller oil companies by raising the costs of oil production. The legislation is “not where we need to be right now” she said.

And don’t say that we just need better politicians. If libertarianism requires incorruptible politicians to work, it’s not serious.

Well, he’s got a point. Politicians do interfere in the tort system — by placing caps on liability, by stripping defendants of traditional legal defenses, and in other ways. As my colleague Aaron Powell notes, the problem here is that politicians have power that libertarians wouldn’t grant them. And:

Second, and more troubling for Krugman, is his admission that all politicians are corruptible. If that’s true (and it almost certainly is), then what does it say about Krugman’s constant calls for granting those same corruptible folks more power over our lives? Surely if Murkowski is corrupt enough to protect BP from tort damages, she’s corrupt enough to rig safety regulations in BP’s favor.

The libertarian system of markets and property rights is impeded when politicians interfere in it. But Krugman’s ideal system is that politicians should decide all questions — monetary policy, health care policy, product safety, environmental tradeoffs, you name it. Whose system is more likely to produce corrupt politicians, and more likely to fail because of them?

Federal Redesign of Hot Dogs?

From a Richmond Times-Dispatch editorial, the sort of passage you think at first must be satire:

At the instigation of the American Academy of Pediatrics, federal bureaucrats at the FDA, the Department of Agriculture, and the Consumer Product Safety Commission are studying whether to require the nation’s hot-dog makers to redesign hot dogs to reduce the likelihood of choking.

But it’s not satire, as other news clips confirm.

Now, as every parent knows who makes sure to cut up a hot dog for the smallest eaters, the risk of choking on one of these food objects is not zero (though it is very, very low; 13 children’s deaths in 2006 were linked to hot-dog asphyxiation, but children eat nearly 2 billion hot dogs a year). In that sense, the proposal is less obviously batty than some other federal regulatory initiatives that have upended whole sectors of commerce over risks that have never been shown to have harmed anyone at all.

But notice that the only truly effective way to keep the familiar cylindrical hot dog off the plates of small children would be to ban it for everyone — the logical end point, perhaps, of a policy that infantilizes parents by assuming they cannot be trusted to watch out for their children’s safety. If on some future Memorial Day you find only squared-off frankfurters or triangular-prism bratwursts in the supermarket cooler, don’t say you weren’t warned.

Associated Press: Drug War Failing

From an Associated Press story:

After 40 years, the United States’ war on drugs has cost $1 trillion and hundreds of thousands of lives, and for what? Drug use is rampant and violence even more brutal and widespread.  Even U.S. drug czar Gil Kerlikowske concedes the strategy hasn’t worked. “In the grand scheme, it has not been successful,” Kerlikowske told The Associated Press.”

Former Drug Czar John Walters complains, ”To say that all the things that have been done in the war on drugs haven’t made any difference is … saying all the people involved in law enforcment, treatment and prevention have been wasting their time. It’s saying all these people’s work is misguided.” 

Precisely.

Read the whole thing.  More here and here.

This Week in Government Failure

Over at Downsizing Government, we focused on the following issues this week:

  • The Department of Agriculture’s Office of Communications is a microcosm of government waste.
  • The giant postal monopoly of today bears little resemblance to the limited postal service of history. And that’s not because horses have been replaced with little white trucks.
  • Should the government promote fishing? Perhaps if you believe in the nanny state.
  • Thus far with the House Republican “YouCut” website, we have the Empire State Building engulfed in flames and the GOP sending in a toddler with a squirt gun to solve the problem.

‘YouCut’ Spending by 0.017%

House Republicans unveiled a bold strategy to cut 0.017 percent from the $3.7 trillion federal budget this week. Republican Whip Eric Cantor unveiled the GOP’s “YouCut” website, which includes five possible spending cuts for citizens to vote on. Mr. Cantor promised to take the favored cut to the House floor next week for members to consider.

The basic idea of YouCut is a good one — getting citizens actively involved in solving the government’s giant deficit problem and focusing congressional attention on cutting the bloated budget.

But the GOP leadership make themselves look silly by offering such small cuts. The suggested cuts on the new website average just $638 million in annual savings, which is just 0.017 percent of total federal spending. Put another way, it is just $1 of cuts for every $5,800 of federal spending. The average YouCut savings idea is just 0.04 percent of this year’s federal deficit of $1.6 trillion. So we would need 2,500 cuts of this size to balance the budget.

It’s a mystery why the Republican leadership can’t offer more than tiny spending reforms. They’ve got lots of sharp staffers who know how wasteful many large programs are and understand the need to terminate whole agencies. It’s true that YouCut will offer new cuts every week, but so far the cuts are very timid.

The second-largest YouCut idea this week is to refocus “community development” spending on those cities that are the most needy. But the whole idea of the federal government spending money on local projects such as parking lots is both economically absurd and an obvious violation of the Tenth Amendment.

Come on Republicans, you can do better. Terminating all of HUD’s $13 billion in annual community development spending, for example, ought to be an easy vote for any member claiming to be a fiscal conservative.  

Some Republicans do understand the nation’s fiscal emergency and the need for bold action. Paul Ryan, for example, has his excellent roadmap proposal. But thus far with YouCut, we have the Empire State Building engulfed in flames and Mr. Cantor sending in a toddler with a squirt gun to solve the problem.

Still, the House Republicans have created a tool that citizens can use to get the message across about the need for much larger reforms. The YouCut website encourages people to send in their own budget-cutting ideas. I’ll be sending some in, and folks, feel free to borrow ideas from the “Spending Cut” tables on www.downsizinggovernment.org.  

I don’t think conservative voters, tea party activists, and other citizens concerned about the nation’s economic future want to cut 0.017 percent from the budget. I think they want to cut 10 percent, 20 percent, 30 percent, or more. So send your suggestions into YouCut, and we will see whether the GOP puts away the squirt guns and pulls out the fire hoses.