CLEAN AIR ACT , Section 101: Congressional findings and declaration of purpose
(c) "A primary goal of this chapter is to encourage or otherwise promote reasonable Federal, State, and local government action, consistent with the provisions of this chapter, for pollution prevention."
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On November 29, the United States Supreme Court will hear Commonwealth of Massachusetts , et al. v. EPA, a case filed by a coalition of 12 states, the City of New York , and various environmental groups against the United States Environmental Protection Agency. Several interested groups have intervened.
The plaintiffs and petitioners argue that the EPA is authorized and obligated to regulate greenhouse gas pollutants under the Clean Air Act. The responders and intervenors have responded that the Agency has no authority, or obligation, to do so.
At issue will be something as small as the definition of the word "pollutant". Did Congress intend to give EPA the authority to regulate carbon dioxide and other greenhouse gases as pollutants? If so, are they obligated to do so?
At issue will also be something as large as the role of the President, Congress, and the Supreme Court in staving off climate change in the coming century.
Today, November 21, at 4pm, two historically opposed groups of law students - the environmental and federalist societies - will come together at New York University , along with their professors, deans, and attorneys, to debate this case and its implications for the fight to halt climate change in its tracks.
The Debate is a Preview of the Supreme Court case and will be moderated by two great visionaries in the environmental and administrative law movements, argued by two leading experts, and attended by the next generation of leaders in the environmental and industrial sectors.
And it's going to be one Hell of a debate!
THE DEBATERS & MODERATORS
Introducing, in the blue and green corner, James T.B. Tripp, General Counsel for Environmental Defense and a veteran environmental attorney who joined Environmental Defense one year after the Clean Air Act went into effect.
Introducing, in the red corner, Jeffrey Bossert Clark, who served from 2001-2005 as the Deputy Assistant AG in the Environment & Natural Resources Division of the U.S. Department of Justice under President Bush and argued the case at the district court level.
These two debaters are brought to you by the New York University Environmental Law Society - staunch defenders of the environment, future environmental law leaders, and promoters of a robust field of environmental law - and the NYU Federalist Society - named for the principle of Federalism stated in Alexander Hamilton's Federalist Paper, passionate about the proper, relatively limited powers of the Court.
To keep things fair, NYU Law School has offered up two of its best - who have gone on to greatness after both cutting their teeth under the great Justice Thurgood Marshall.
NYU Law School Dean Richard Revesz explored several different fields as a student - Civil Engineering and Public Affairs at Princeton University , Civil Engineering at MIT, and law at Yale Law School - before clerking for the legendary Justice Thurgood Marshall of the US Supreme Court, joining the NYU Law faculty, and being appointed Dean in 2002.
Professor Richard Pildes, the Sudler Family Professor of Constitutional Law at NYU, was also a clerk for Justice Marshall. He has gone on to become an authority on legal issues involving the structure of government - coauthoring a casebook, The Law of Democracy: Legal Structure of the Political Process, and a major article in modern administrative law - Reinventing the Regulatory State.
Like I said, this is going to be one Hell of a debate!
THE COUNTRY'S FEDERALIST ROOTS
Launched in 1982, as a joint project of Yale, Harvard, and the University of Chicago , the Federalist Society finds its name in a series of 85 newspaper pieces supporting ratification of the US Constitution. These Federalist Papers would later be collected into the a compilation called the Federalist.
One of the Federalist Society's creedos comes directly from Hamilton 's Paper Number 78 in which he states that: "The courts must declare the sense of the law; and if they should be disposed to exercise will instead of judgment, the consequence would equally be the substitution of their pleasure to that of the legislative body."
The 85 Federalist Papers were written by three great US Constitutional scholars - Alexander Hamilton, James Madison, and John Jay. The authors were relatively young, impressive, visionaries, who from 1787 to 1788 ran a well coordinated media campaign to push for the Ratification of the Constitution they had helped create.
The same Constitution would work to put them all into positions of power that would enable them to guide the evolution of the US Treasury, Presidency, and Supreme Court
The main contributor, Alexander Hamilton, wrote his articles at 33 and would go on to serve as the first Secretary of the Treasury under President George Washington from 1789 - 1795. He was instrumental in creating a national bank - a federal financial institution central to modern day capitalism - and defining the agenda of the early Federalist party.
James Madison, at 5 foot 4 inches and one hundred pounds, an overly mature 37, would go on to become the fourth US President (1809 - 1817) after serving as Secretary of State. He penned many of the Federalist papers but would break with Hamilton and the Federalist party at the turn of the century and work with Thomas Jefferson to found a new political party.
The senior author, John Jay, had been elected President of the Continental Congress a decade earlier in 1778 at the astonishingly young age of 32. At a seasoned 43, he would pen several of the Federalist Papers, then go on to become the first Chief Justice of the US Supreme Court.
The Federalist Papers have had a profound effect on the growth of all three branches of government, particularly in the Courts. As early as 1819, Chief Justice John Marshall noted that "the opinions expressed by the authors of that work have been justly supposed to be entitled to great respect in expounding the Constitution." However, Marshall also noted that, "in applying their opinions to the cases which may arise in the progress of our government, a right to judge of their correctness must be retained." (emphasis added)
THE DEEPER DEBATE: HOW CAN FEDERALISTS SEEDS MEET TODAYS'S NEEDS
But how are we to apply these Federalist principles to the task of tackling today's global environmental problems? A traditionally Federalist judge might side with the EPA - Congress did not expressly give the EPA authority and a Court cannot reasonably find that it did, unless they are imposing their "will" rather than simple "judgment".
But perhaps simply by applying judgment, they will judge that Congress did intend to give a group like the EPA the broad authority to protect this country's natural environment from global threats as section 101(c) (above) hints at.
For these answers, we must go back decades. The threat of global warming was predicted in 1967 when Congress passed the Air Quality Act and increasingly substantiated as Congress made major amendments to the Act in 1970, 1977, and 1990. Did the Framers intend to include the regulation of greenhouse gases?
Or perhaps, a less Federalist view - that the courts can and must play a larger role in the struggle against climate change - exercising both will and judgment - as learned citizens applying past precedents to modern day situations to find solutions between competing interests.
Regardless, I hope that in addition to discussing the merits of the EPA case, the definition of a pollutant, and the intent of the Clean Air Act's framers today, the group assembled will also begin a larger and longer debate that dates back to the original Framers.
And this debate should have, as its goal, the creation of solutions that combine the best, boldest, ideas and actions, of today's and yesterday's Federalists, Environmentalists, Industrialists, Socialists, Capitalists, and every "ist" in between.
And America must harness these ideas and actions to drive a Modern Industrial Revolution through which the Federal government, state governments, municipal governments, and this country's 300 million citizens will tackle climate change.
We have grown into a world very different than the one in which our founders lived. As Americans, we live in the most powerful nation in the world and have the most resources at our disposal to develop innovative solutions, mass produce them, and export them to great national and global benefit. With this great power comes both an incredible opportunity and obligation to do more.
If Jefferson, Madison, Jay, or Hamilton himself were alive today, I can't imagine any of them allowing a problem as serious as climate change to go largely unaddressed by the the Executive Branch, the US Congress, and the Supreme Court. Somehow, our system of Government must be good enough to find an answer before it's too late.
CONTINUE THE DEBATE OR IT MAY BE TOO LATE
So, as you head to the debate today, I urge you to go with an open mind to your opponents' positions.
If you're an Environmentalist, hold the door open for a Federalist. And if you're a Federalist, say something nice to an Environmentalist. Get each others' cards and stay in touch.
And even if you disagree passionately, please look carefully for "solutions in the rough" in what each other are saying.
Because before too long it will be you - at Environmental Defense, the US Department of Justice, the EPA, your state AG's office, a law firm, or in the ranks of industry and non-profit groups - trying to figure this out. And you'll have to find a way to work together better than past generations have to lick climate change.
So here's to the NYU School of Law, the NYU Environmental Law Society, the NYU Federalist Society, debaters, moderators, and spectators for catalyzing this debate.
These students and this century will see one Hell of a debate and face one Hell of a challenge.
It's about time we got started!