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December 19, 2006


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Frederick Hamilton

Terrific. What could easily be done legislatively if the people wanted it now is being fought out in the courts. It would be nice if the Supreme Court simply ruled that this issue should be solved by Congress, not the courts.

Is there any wonder why most Americans have antipathy toward lawyers and consequently are thinking less and less of judges?

This is a silly lawsuit that typifies the horrible nature of litigous America. Should the Supreme Court rule that the EPA must regulate automobile emmisions more stringently than presently regulated it will be the average American who takes it in the wallet.

Too many law schools. Too many lawyers. Too easy to become an attorney. Get a law degree at night. Oh what trouble America is in from a "legal" standpoint. But it is the Christmas season and why shouldn't SeaTac airport be threatened with a Christmas Tree lawsuit? Ho Ho Ho.

If you can't get what you want legislatively, sue. The courts will give you what you can't win in Congress.


Mr. Hamilton, I once believed as you believe. What changed my mind was a conversation with a friend who was, I think, Deputy Attorney General of the State of California. This was many years ago. I presented your basic argument to him and he demolished it with a simple set of questions:

1. Whenever you have litigation, it's because two parties are locked in a serious disagreement, right?

2. How should they resolve that disagreement?

At this point I gave him the standard argument about waiting for legislation to address the issue. To which he replied:

"Litigation can only proceed when there's already relevant law in place. If there's relevant law, why do we need new legislation?"

He went on to address some of the finer points raised by all this: the fact that sometimes an existing law leaves some issues unclear and in that case new legislation that clarifies the issue is desirable, or the fact that changing social, economic, or technological conditions can require adjustments in the law. But his basic point was simple and clear:

The legal system is not the source of conflict; people get into conflicts and the legal system attempts to resolve those conflicts for them. If you think that there's too much litigation going on, don't blame the legal system, blame the people who can't resolve their problems.

My hunch is that Americans are litigious because they are not willing to accept perceived injustices. In many other countries, the citizen's response to an injustice is to shrug his shoulders and mutter "Nichevo" or "Das machts nichts" or "What can you do?" But American citizens do not shrug their shoulders, they go to court. Yes, it can be tedious when people bring ridiculous disputes to court. But consider the letters to the editor page in your local newspaper. There are plenty of nut cases there. But would you deny free speech merely because there are lots of kooks out there with crazy ideas? Of course not; we acknowledge that a free and active citizenry will have a certain amount of turbulence. So what's wrong with the same thing happening in our legal system?

By the way, there's an interesting comparison here. In classical times, there was one polity with a reputation for litigious citizens. Everybody else shook their heads in disgust at the amount of litigation these people went through. The polity was the polis of Athens in its heyday. Perhaps there is a correlation between active democracy and litigation.

In this particular case, the problem arises because two parties disagree on the interpretation of a law: the EPA and the states. You are in no position to declare which side is right. You're welcome to root for one side or the other, but to condemn one side or the other for failing to knuckle under is unfair and, I think, reflects ignorance of the complexities of the dispute. I too would condemn a dispute whose resolution is obvious, but this is not one of those disputes.

Frederick Hamilton

I don't believe the states have any legal standing to tell the EPA how to administer the laws you speak of. There is no harm to the "state" of Massachusetts. It is a representative arm of the people of Mass. Those same people have representatives in Congress.

This remains a silly lawsuit that is the subject for Congressional determination, not the courts.

Yes, we are a nation of laws. Those laws will lead to lawsuits. But the lawsuits should have merit and belong in courts that adjudicate disputes between litigants who have appropriate standing with regard to the specific issues of law. Massachusetts has no such standing.

Frederick Hamilton

Also, if Massachusetts, a soverign state wants to pass legislation as California has done setting parameters for emissions on new cars sold in the state, it can do so. Or all cars registered in Massachusetts, it can do so. California has done so and it has a nationwide effect.


Where we disagree is in my willingness to admit that I can't decide whether the states really do have standing. You are quite certain that they don't. But is this because you disagree with their policy goal? If the situation were reversed, and the states were suing the EPA to back off on what you considered to be excessive regulations, would you be just as certain that they have no standing to sue? I am asking these as truly rhetorical questions.

There's a wider question to be considered here: who DOES have standing to force a Federal agency to enforce the law? Should the Federal government be free to enforce the law in any manner it sees fit? Is there no constraint upon the Feds? Should there not be SOME way to keep the Feds honest?

Frederick Hamilton

No my position on standing with this lawsuit is not policy driven, but just that I think it is not a states perogative to force a federal agency to do something unless the state is being harmed by the agency's action. As a state and with real harm. The feds for instance witholding funds legally due the state per statute, say Medicaid funds.

Plus the state has its own remedies for automobile emissions. California again is the example. The auto companies either had to comply with California law or stop sell vehicles in California. It was their enviornment and their enviornmental policy. Massachusetts has no say in the EPA's enviornmental automobile carbon emission policy for instance.

As to who does have standing to force a federal agency to enforce the law? Clearly Congress has the ulitmate authority to make sure federal agencies are complying with the laws they have passed. Pretty easy to bring any federal agency to heel. The power of the purse is the ultimate authority which no agency or president would ignore. So really, again, it is Congress that has the responsibility to make sure EPA is enforcing the law as written. It is their oversight that is supposed to make it happen. Not Massachusetts. Massachusetts can set their own auto emissions policy and laws.

Sadly it is not only Repubs but also Dems who look the other way when it comes to oversight of federal agencies (the executive).

For instance, it is now against the law for employers to hire illegals in this country. There is zero enforcement. There is zero prosecution of employers or executives of companies. There is zero pressure from the executive branch or Congress to enforce these laws.

Many localities, counties and some states are starting to arrest illegals, but it is the federal governments responsibility to arrest and prosecute employers per the federal law. Not happening. Possibly some agressive states may pass laws outlawing hiring illegal immigrants in their states and then prosecute and throw executives, CEO's, et al in the slammer.

But final answer. EPA. Congress.


"Too easy to become an attorney."

And you know this from experience, Frederick? I think anyone who's actually taken a bar exam will beg to differ.

I find people often find reason to disdain lawyers when they disagree with the outcomes their clients seek. People just as easily like lawyers and judges when decisions are going their way. Lawyers make convenient scapegoats for the fact that their CLIENTS engage their services for ends of varying appeal (depending upon who you are, of course). Your "lawyers suck" argument makes about as much sense as hating your doctor for telling you that you're dying of cancer.

If Congress, beholden as it is to corporate interests, has stopped representing the people (as it has), the people will turn to their lawyers. Thank God there are a few who actually care what individuals think and don't pander to moneyed corporations.

Now, if you want to bitch about major law firms, you'll find much more agreement from me. The American people need representation, and our Congresspersons, by and large, aren't giving them that. It doesn't make lawyers bad people if they pick up the slack.


Mr. Hamilton, you argue that the state must demonstrate clear harm in order to have standing. Surely you will agree as part of this that the timing of the harm has no bearing; if an action in the present will bring future harm, it still meets the definition of harm. So the only question is whether there will be harm. But there is no question here: the National Academy of Sciences, created by Congress specifically to provide authoritative scientific advice to the government, has determined that global warming is real, anthropogenic, and will impose real costs in the future. Thus, the State of Massachusetts can authoritatively state that it will suffer harm due to the EPA policy.

You argue that Massachusetts can pass its own laws to limit CO2 emissions. This is easily dismissed; Massachusetts can argue that much of the harm is generated by CO2 emissions from other states.

You're right that Congress can challenge the EPA policy. So yes, there is at least one safety check. This does nothing, however, to bring into doubt the standing of the states to bring suit. It serves to defeat my argument that there must be at least one safety check on the Executive.

Frederick Hamilton

You are right, I was too cynical. Although I do think it is too easy to get a law degree. Night school for a law degree exists. Can't go to night school to get a medical degree. But I am prejudiced toward the docs. You know docs/lawyers ergo vinegar/water, they seperate.

Actually my daughter last year passed the NY Bar on the first sitting. Very proud of her. Told her she had better genes/jeans than the Kennedy's.

Just we all see too darn many frivolous lawsuits and our society is too litiginous and it does impact significantly our ability to compete in the world, et al.

Now Eras, not fair to argue that CO2 emissions are someone elses fault and therefore punt on the issue in your own state. At least California didn't weasel out on the issue. If you feel it is a problem, address it.

The science on global warming is to say the least controversial. The ability of impacting CO2 greenhouse gases with changes in policy very problematic. Kyoto Treaty went down in the Senate 96-0. Ergo, if you can't get what you want with the peoples representatives, sue.

This is a silly lawsuit on any number of fronts. Science. Real impact on greenhouse gases. Real harm to the State of Massachusetts. et al. I hope the Supreme Court deals with this lawsuit with four words: Go get the votes.


You're right that the behavior of Massachusetts could be interpreted as hypocritical: they sue to have the Feds enforce the law without passing any laws themselves. However, they have a solid defense on this point: we're deferring our own action because we expect to see the Feds do it. Given the time scales involved, I consider that a fair defense.

You are flat, dead wrong in stating that, "The science on global warming is to say the least controversial" There is no fundamental controversy within the scientific community; the controversies concern details. In that sense, global warming is no more controversial than the Big Bang theory. Ignorant people seize upon two facts:

1. Scientists are arguing over the details of global warming. That existence of such controversy does not in any way cast doubt on what HAS been clearly established. Now that they have established the fundamentals, they are arguing about the mechanisms that are producing these effects.

2. There exists some scientist A who claims that everybody else is all wet. Of course that's the case -- science thrives on dissent. There are ALWAYS skeptics who challenge the orthodoxy, and they are honored within the scientific community because they keep everybody sharp. Citing one skeptical scientist is like quoting the opinion of Joe Law Professor as definitive when the Supreme Court has ruled otherwise. And there really is a Supreme Court for science: the National Academy of Sciences. The NAS has already ruled that global warming is real, that it is anthropogenic, and that it constitutes a significance threat.

You know, I just can't understand why anti-environmentalists refuse to see a truth that has been established beyond all reasonable doubt, claiming that is controversial.



You should be far more afraid of an Executive branch that does not do its job and enforce duly passed laws or interprets them in such a way as to render the laws meaningless or without effect. It is far far less democratic for, say the FDA to put the breaks on the morning after pill for political reasons, or for insurance commissions to write insurance regulations so permissively in favor of insurance companies that they end up allowing insurance company coduct to violate long held principles of contract and tort.

It happens all the time. One thing you should not buy into is the Republican attack against the judiciary. I promise you, as this is what I do for a living, that a politically motivated executiev branch, one beholden to special interests, is a far far greater threat to the functioning of our democracy than is the litigious nature of our society and the role of the courts.

Ther is a good reason our culture is so litigious: it is the least regulated and freest economy in the world. If you want less litigation, you should strive for more front end regulation of conduct, and you should hopr for an executive branch that actually takes its regulatory responsibilities seriously. Otherwise it is an inevitability that courts will have to clean up the mess that happens when you allow corporations to write their own regulations and executive administartive agencies who fail to perform their roles adequately.

Frederick Hamilton

Calm down Eras, not all ignorant people believe global warming is hyped. Even some ignorant people believe in global warming and the calamity facing us.

Some smart people have global warming all figured out and other smart people are confused about global warming. Go figure.

Tis the season for peace and love.

Does the NAS have a solution to global warming that would not destroy the American economy? And since it is caused by man maybe Milton Friedman would be right that the mind of man will solve it. Actually he is.

Last week we previewed a huge solution to global warming (sadly not available in the US). The US entered into a treaty with India to help them transition from 80% of electicity based on burning carbon spewing coal to 100% from nuclear power plants which are perfectly non carbon.

But do the American crazy greenies want to go for nuclear power plants for our electricity? No, we ignorant rubes want to, but the really smart enviornmentalists like those folks in Massachusetts are convinced "laws" will do it. Or how about those really bright people in Massachusetts that will not accept wind power twenty miles off the coast of Cape Cod. Interfers with their sailing. They have the right idea, sue EPA, that'll clean up our skies. Oh but wait, the jet stream brings China's air to us and our air to Europe. I get it, we'll ride bikes and let the Chinese have all the cars and coal burning electrical plants. But wait, we'll then get Chinese air. Oh it is so difficult.

Come on. Our decrease in CO2 emissions through technology has outpaced all of the world in the past 10 years and we haven't signed on to Kyoto. In twenty years without the US signing onto any global warming pacts our emissions will pale in comparison to the rest of the world.

Yes, if only the smart enviornmental crazies would let us build nuclear power plants, with reprocessable nuclear rods as the French are doing, it would even happen sooner.

In the meantime lets just stick the cost of our eliminating greenhouse gases on the backs of those rube joe sixpacks who drive their pick-up trucks to Wal Mart to buy all those things made in China where the Chinese are polluting the hell out of the skies.

Yep. Go for it all you bright global warmers. Nix Nuclear. Eliminate wind power. Sue for the EPA to mandate what Congress wont do. Reminds me of the war protestors who wanted to sue for peace. Sue for clean air. I knew some good lawyers could clean up the world. Have they filed those lawsuits in India and China yet?


Mr. Hamilton, I don't know what straw men you're arguing with, but you're certainly not responding to my statements. I won't go any further into the whole global warming debate; there's lots of information available for people who choose to make their decisions based on the facts. I urge you to explore some of that information. And while I agree with you that the cost of reducing CO2 emissions will be high, the costs imposed upon us by global warming will be much higher. In pure ROI terms, most of the abatement strategies look pretty good.


When none of the countries who have signed the Kyoto protocol meet the target emissions reductions, who do they sue or do they get sued? Can non-signers sue they them?

Frederick Hamilton

I actually don't think the costs of reducing CO2 emissions will be that high. We are doing it now. The US has reduced its emissions more than any signatories to the Kyoto Treaty.

Costs can be managed easily with technological improvements and if the country embarks on a nuclear electricity program similar to France (80%) or India's new program they are beginning.

Enviornmentalists resist nuclear for no good reasons. So you can't have your cake and you won't even get to eat it if you don't bake it properly.

I wonder what the Kyoto Treaty vote in the Senate now would be with more "enlightened" thinking on global warming? 90-10 against?
As Professor Stone says, "We the People".


Again, I fear that we are engaging in topic drift, but I must inquire into your reasons for claiming that the US has reduced CO2 emissions more than any signatory of Kyoto. I recall seeing some data indicating the reverse. Can you point me to some source of your information?

Frederick Hamilton

I actually remember seeing data showing much lower carbon emissions and a better performance by the US than Britain, et al that signed onto Kyoto. I'll have to look it up.

But before any Congress or president signs on to a Kyoto like pact, the ecomonic growth impact and costs (gas, et al) will need to be passed by the citizenry.

When those calculations and greenhouse gas reduction impications are shared with Americans, we will be able to make an informed decision on whether it makes sense to join any protocol, Kyoto or otherwise.

That is the data we ciizens really need. I find it interesting that no member of Congress has introduced legislation or plans for CO2 "laws" as of yet. When will that come? We the People and all.


I did a little research myself and found a lovely chart here:


It clearly shows US CO2 emissions rising steeply for decades. There was a short decline during the late seventies as a result of high fossil fuel prices. There was also a 0.1% decline from 2002 to 2003. Also, the amount of US emissions as a percentage of global totals has been falling, not because of any decrease in US emissions, but because other countries are increasing their CO2 emissions. Perhaps these are the numbers you're referring to.

However, other countries have managed to get absolute decline, not just relative decline. Here's the graph for the UK:


which shows that they peaked in the late 70s and have been falling ever since. The date for Germany also shows a steady decline since unification in 1990 (the data is screwy for that year because of the merging of datasets for East and West Germany):


And lastly, the data from what I'm sure is your favorite country, France, also shows a big drop since the late 1970s:


All this data comes from the Oak Ridge National Laboratory.

Also, I'll point out that the USA has the highest per capita production of CO2 in the world. We are most certainly NOT a leader in controlling CO2 emissions. Right now, we're the biggest emitter country on the planet, both in terms of absolute amount and amount per capita.



Your disdain for lawyers is foolish. Let´s have a look. Are there too many lawyers? Maybe. But I´d take a handful of lawyers any day over a bunch of crooked lobbyists. Why? Because legislatures are very, very, very bad at dealing out individual justice. They don´t care what´s happening to the individual. Can you imagine some individual trying to lobby Hillary Clinton to change Roe v. Wade? Of course not.

Individuals take a back seat to rich people/companies who fund big campaigns. That´s what happens in the legislature. There are only a few times when individuals get their day in the legislature. It is "we the people" only on a few limited issues...abortion, war in Iraq, illegal immigration, and perhaps a few others. I think there´s a place for the legislature, and that´s to look at things from a bird´s eye view, and try to keep the majority happy. Great.

The courts, on the other hand, get to take things slowly, and figure out who actually has the better argument, and better facts to support their position. They are very high on individual adjudication. They sort things out, by listening to everything that the individual parties can bring to the table. Then, the case is decided by an arbitrary factfinder (normally representative of "we the people"), in the INDIVIDUAL CASE. Legislatures have no process, nor any desire, to do that.

We as a society have resorted to the courts to settle our individual disputes, rather than trying to stage a military coup every time we think the government is infringing on our rights. We go to court instead of beating the hell out of our neighbor. We go to court instead of sneaking into our neighbor´s house and taking back what he stole from us.

It´s a good system. Maybe there are too many lawsuits, but most of the really stupid ones get kicked out in summary judgements. Most of the other cases get tried on the facts by a representative subsection of "we the people."

If Mass. is going to be damaged because the executive doesn´t follow the law, they should get their day in court. I´m not necessarily sure they´ll win, because, as you and professor sunstein point out, the damage is minimal, if it exists at all. I actually agree with you that there are other ways that Mass. could do other things to do their part in this (forgive the phrase) war against global warming. This will way against them at trial.

But lawyers are here to help individuals receive justice. The fewer lawyers there are, the fewer opportunities there are for people to find someone to represent them against others (including their government). Fewer opportunities there are for the government to justify it´s actions if they are in the right. Fewer opportunities for the proper process to work.

I think there need to be more trial judges, honestly. That way the courts could be a little more efficient, but again, the legislatures have found it prudent to put money in other places. Not surprising.

In sum, both branches have their functions; one is collective, the other individual. Both are necessary. But the courts don´t have to worry about re election, they don´t have to worry about what others will think, and they don´t have to worry about losing their job based on what they do. They don´t have to rely on huge amounts of money from interested parties in order to continue their service. They can take their time, and come to the best conclusion that they can.

People can at least trust the courts.


Reading back through, I think I didn´t explain at all well enough what I meant with "arbitrary factfinder" in the above post.

What that was supposed to refer to was a random/arbitrary sampling of people from the general populace who, the grand majority of the time, are neutral and not interested in the outcome.

I apologize for the lack of clarity there.



"weigh," not "way"

Should have previewed better.

Frederick Hamilton

Actually I don't have that much disdain for lawyers. By and large most of the legal activities in this country are appropriate. But we do have a tort problem in the US, I believe.

One other thing, in fact most of those crooked lobbyists are lawyers.

Is Massachusetts harmed? Doubtful. Does it have standing? Very doubtful.

As far as addressing global warming. I find it odd that for such a calamatous and cataclysmic problem as claimed, there is virtually no legislative activity going on to drastically restructure our nations approach to it. Why isn't there?

Does the election now mean that the Dems, who seem more energized over global warming than the Repubs, are going to be spearheading a flurry of legislation to change the industrial and personal activity of America to thwart this cataclysmic threat?

Joan A. Conway

I just read an interesting book concerning Saxons, Vikings, and Celts, by an author named Sykes, concerning DNA and proving that the gene pool of 8,000 years yield information about the inhabitants of the British Islands to be, of all things, Celtics, after analyzing the Maternal Ancestral Chromesomes, and the Paternal Ancestral 'Y' Chromesomes.

It appears that the Vikings were pretty sick of getting their asses whipped by the Irish, so they did rape, pillage, and destroy their females.

The last thing a Viking wanted in his ancestral blood was Irish DNA.

It also appears that those kilts on Scotish men are the real thing with the Maternal Inheritance System of the Scots and the Picts.

The arrogant Anglo-Saxons coping their Germanic conquerers superior attitudes are misplaced, because they are Celtic to the core, and that German stuff is quite shallow.

But why I write about these gems of information in quite an outstanding study of DNA is the mentioning of the ICE AGE and an ICE SNAP 8,000 years ago that joined Ireland to Wales, Scotland, and England.

The deduction was made that the earth wobbles in its orbit that causes the freeze down to the Spanish Coastline within 1 century.

And when the temperature rises it rises noticeable and was a lot more warmer than it is today.

So according to biogentic PhD.s' this global warming is nothing to be too excited about, just yet at least.

I strongly recommend the book.

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