Yesterday the Supreme Court granted cert in another significant environmental law case — actually two combined cases, National Association of Home Builders v. Defenders of Wildlife and EPA v. Defenders of Wildlife — concerning the extent to which the Endangered Species Act (ESA) requires federal agencies to avoid actions that could harm endangered species when such a requirement could conflict with an agency's other statutory obligations. As Lyle Denniston notes on SCOTUSBlog:

The endangered species case grows out of a move by the state of Arizona to take over from EPA the program of regulating permits for discharge of pollutants under the Clean Water Act. The Court granted both cases, and added to the review the question of whether the EPA decision to transfer this permitting authority was wrongly based upon inconsistent views of the Endangered Species Act and, if so, whether the case should have been sent back to EPA for further review.

Here is the petition, opp, and reply brief.

MORE: The divided opinion of the U.S. Court of Appeals for the Ninth Circuit is here. The dissenting opinions from the denial of en banc review by Judges Kozinski and Kleinfeld, along with Judge Berzon's concurrence, are available here. The Environmental Law Institute's "Endangered Environmental Laws" program profiles the case here.

[NOTE: Links should be fixed now.]

UPDATE: Holly Doremus explains why this case "is potentially the most important ESA case the Court has heard since TVA v. Hill."

My colleague (and one-time VC guest bloger), Andrew Morriss has co-authored an interesting new paper with William Henderson on U.S. News' use of post-graduation criteria in its annual law school rankings. This aspect of the rankings, which include employment rates, average salaries, and bar passage, account for 20 percent of a school's overall rank, and have been the focus of substantial law school efforts to increase their ranks. The abstract of the paper, Measuring Outcomes: Post-Graduation Measures of Success in the U.S. News & World Report Law School Rankings, is below:

The U.S. News & World Report annual rankings play a key role in ordering the market for legal education. This Article explores the impact and evolution of placement and post-graduation data, which is an important input variable that comprises 20 percent of the total rankings methodology. In general, we observe clear evidence that law schools are seeking to maximize each placement and post-graduation input variable. During the 1997 to 2006 time period, law schools in all four tiers posted large average gains in employment rates upon graduation and nine months, which appear to result from a combination of competition and gaming strategies. Law schools in tiers 2, 3, and 4 have also increased 1L academic attrition, which may be an attempt to increase the U.S. News bar passage score.

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Rick Hasen discusses the 7th Circuit's decision upholding Indiana's photo ID law here. See also here, and the AP story here. Hoawrd Bashman rounds up more news covereage here.

Senator Max Baucus (D-MT), the incoming Finance Committee Chair, has an op-ed in today's W$J outlining his vision of "A Democratic Trade Agenda." Is it a good one? That's hard to tell. Here's a taste:

At a time when our country's competitive strength depends increasingly on an aggressive trade policy, Americans are far less willing to embrace one. Many equate trade and globalization with ballooning deficits, stagnating wages and layoffs. Meanwhile, even as China and India have continued their economic reawakening, America has lacked the leadership to tackle the associated challenges through trade. U.S. policy has lurched frantically from one trade agreement to the next, eking out just enough votes to push each one through Congress.

Some think that the new Democratic congressional majority will be bad for trade policy. While it is true that some candidates criticized trade in their campaigns, I believe that the new Congress will have both the desire and opportunity to renew U.S. trade policy, with a unifying purpose that Americans can understand and support. Through trade, we must bolster the nation's innovative economy in an increasingly global marketplace. At the same time, we must tackle with equal vigor the negative domestic consequences of globalization, from trade deficits to job losses.

Dan Drezner's take (and hbe knows more about trade policy than I do) is that the article is ambiguous because Baucus is simultaneously "laying down a marker against protectionist Democrats" while "trying to get the Bush administration to sign off on Democratic policy proposals with a veneer of soothing rhetoric," and yet is not sure how to balance these two aims. Were it not for the Bush Administration's own spotty record on trade, I'd be quite discouraged.

Today, in Crawford v. Marion County Voting Board, a divided panel of the U.S. Court of Appeals for the Seventh Circuit rejected a constitutional challenge to Indiana's new photo ID requirement for voting. Writing for himself and Judge Diane Sykes, Judge Richard Posner held that the photo ID requirment did not impose an undue burden on the right to vote, even though the law would deter some individuals from voting, and even assuming that the law would have disproportionate effects on voters of one party.

In ananlyzing the statute, Posner rejected strict scrutiny, observing:

The Indiana law is not like a poll tax, where on one side is the right to vote and on the other side the state’s interest in defraying the cost of elections or in limiting the franchise to people who really care about voting or in excluding poor people or in discouraging people who are black. The purpose of the Indiana law is to reduce voting fraud, and voting fraud impairs the right of legitimate voters to vote by diluting their votes — dilution being recognized to be an impairment of the right to vote.

Judge Evans dissented:

Let’s not beat around the bush: The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic. We should subject this law to strict scrutiny—or at least, in the wake of Burdick v. Takushi, . . . something akin to “strict scrutiny light” — and strike it down as an undue burden on the fundamental right to vote.

UPDATE: I neglected to add that both opinions are short and worth reading in full. This was a high-powered panel addressing an important issue.

I've also fixed the link above, or try this one.

How will the passage of Proposition 2 in Michigan impact the University of Michigan's U.S. News ranking? Some interesting speculation from Michael Dimino and Alfred Brophy.

Last fall I posted on the Environmental Protection Agency's plans to shutter its regional libraries. In the intervening months, it appears the EPA has moved forward with its plans, despite growing criticism and the concerns of the incoming Congressional leadership. Among those who have challenged the plans are library associations, EPA professional staff, and environmentalist groups. A group of environmental law professors (including yours truly) also sent a letter to the incoming Congressional leadership (including relevatn committee chairs) encouraging them to challenge the EPA's plans. The letter reads in part:

As you are undoubtedly aware, on September 20th, EPA published a Federal Register notice announcing that, as of October 1st, the main library at the Agency’s Washington, D.C. headquarters would be shuttered to EPA’s own staff, as well as to the general public, ostensibly for budgetary reasons. EPA libraries are already closed down in a number of the Agency’s regional offices, as well as in its headquarters, and the hours of a number of its other regional libraries have been significantly curtailed. The vital technical documents that those libraries contained are now being dispersed. In some cases, reportedly, they are actually being destroyed.

When it made these steps public, the Administration stated that EPA’s staff and the public may now access the information they require through EPA websites, rather than in hard copy. That contention is substantially false. Although the federal government has made significant strides in providing internet access to its documents, the vast majority of the documents in the closed EPA libraries are not digitized, and no funds have been allocated for that process to be completed. The likelihood that critical documents will now be damaged or lost is therefore very high. . . .

Ironically, the monetary savings that will result from these library shutdowns seem paltry, if not entirely illusory. . . . As a percentage of EPA’s overall budget, any fiscal savings from the closures will be minuscule.

Moreover, EPA’s libraries were also a valuable repository of environmental information for the general public with respect to such topics as historical trends in the contamination of local areas and techniques for the mitigation and control of pollution. . . .

Over the holidays, Rebecca Bratspies posted an update on Biolaw:

The Bush Administration has apparently began to feel the pressure. On December 11, 2006, EPA Deputy Administrator Marcus Peacock spoke for the first time about the library closures and defended the closures as a budgetary matter and again asserted that documents would be available online. However, virtually none of the EPA records that exist prior to 1990 have been digitized and there are no funds allocated for that process in EPA's 2007 budget. Peacock did indicate that EPA had "rescheduled the recycling" (read destruction) of documents in light of the congressional request. Much of the national press picked up the story at this point.

Nonetheless, as of now, E.P.A has closed its libraries in Dallas, Chicago and Kansas City. The Boston, New York, San Francisco and Seattle libraries are operating with reduced hours and public access. The central library in Washington, D.C., while nominally still open to E.P.A staff, has been closed to the public.

Apparently in an attempt to make the changes irreversable, an unknown number of documents have already been destroyed and the collections of the closed libraries dispersed. In one of the more bizarre turns, all the library furniture and fixtures from the Chicago library, said to be worth $80,000 were sold at auction for $350. The unseemly haste with which these critical libraries have been dismantled is startling.

Whatever one's view of current environmental regulations, or the EPA, closing libraries before all relevant materials are available on-line is a bad move. If motivated by budgetary concerns, it is penny-wise, but pound-foolish.

On New Year's Day, the New York Times published an interesting (if long overdue) article pointing out that there is much more to the climate change policy discussions than a debate between "believers" and "heretics." Now, article author Andrew Revkin claims, there is a "third stance" emerging that "challenges both poles of the debate."

They agree that accumulating carbon dioxide and other heat-trapping smokestack and tailpipe gases probably pose a momentous environmental challenge, but say the appropriate response is more akin to buying fire insurance and installing sprinklers and new wiring in an old, irreplaceable house (the home planet) than to fighting a fire already raging.

“Climate change presents a very real risk,” said Carl Wunsch, a climate and oceans expert at the Massachusetts Institute of Technology. “It seems worth a very large premium to insure ourselves against the most catastrophic scenarios. Denying the risk seems utterly stupid. Claiming we can calculate the probabilities with any degree of skill seems equally stupid." . . .

“Global warming is real, it’s serious, but it’s just one of many global challenges that we’re facing,” said John M. Wallace, a climatologist at the University of Washington. “I portray it as part of a broader problem of environmental stewardship — preserving a livable planet with abundant resources for future generations.”

The article quotes Dr. Mike Hulme, director of the Tyndall Center for Climate Change Research in Britain, "raising the concern that shrill voices crying doom could paralyze instead of inspire."

“I have found myself increasingly chastised by climate change campaigners when my public statements and lectures on climate change have not satisfied their thirst for environmental drama,” he wrote. “I believe climate change is real, must be faced and action taken. But the discourse of catastrophe is in danger of tipping society onto a negative, depressive and reactionary trajectory.”

The evidence that human beings are, and will continue to, have an impact on the climate has been strong for quite some time. There is significant uncertainty about what precisely this means (e.g. the effect it will actually have on weather, sea-level, etc.), but little doubt that it will produce signficant environmental changes, some of which will impose significant costs and some of which may provide benefits. There is also little doubt that the distribution of climate change's costs and benefits will be anything but uniform. So, for instance, parts of Canada might benefit from longer growing seasons and milder winter, while low-lying tropical regions are flooded and suffer greater disease outbreaks.

At the same time, we have no clue how to reduce anthropogenic emissions of greenhouse gases sufficiently so as to stabilize atmospheric concentrations anywhere near present levels. Existing technologies, including projected advances in renewables, nuclear, and other low-to-zero-emission energy sources, can only do so much. Ditto for conservation. The realistic costs of climate change policies approach the magnitude as those of climate change itself, and include significant uncertainties of their own.

The real debate is thus over what sort of insurance policy -- or, more properly, mix of policies -- represents the proper response to the real risk of climate change, and how should the costs of such policies be apportioned. This is a serious an important debate. Unfortunately, it does not get more attention because a fiery believer/skeptic debate over the science creates a simpler "he said/she said" narrative for popular consumption.

For additional reactions to the Revkin piece, see this post at RealClimate, this post at Prometheus, and this post at Gristmill.

A new emergency preparedness study released by the Department of Homeland Security reports that Cleveland is among the worst-prepared metropolitan areas in the nation, at least with regard to emergency communication systems. The study, released today, evaluated the interoperable communications capabilities in 75 metropolitan areas.

What's Cleveland's problem? Apparently Cuyahoga County lacks a countywide communications system, and there is insufficient compatibility among the communications systems utilized by first responders and other government agencies in the area. According to the Cleveland Plain Dealer story,

Police and firefighters in the county's 59 communities talk on about 50 different radio systems. Some cities have separate radio systems for their police and fire departments.

The systems can be linked only by following complicated steps. As an alternative, safety forces pass messages through dispatchers when emergencies cross borders, risking delays and confusion.

Columbus was among a small group that finished with top scores in the Homeland Security Department's study of 75 metropolitan areas. Others were Washington, D.C.; San Diego; Minneapolis-St. Paul; Sioux Falls, S.D.; and Laramie County, Wyo.

Joining Cleveland at the bottom were Chicago; Baton Rouge, La.; Mandan, N.D.; and American Samoa.

The Senate Judiciary Committee would like details on what the Justice Department considers to be the legal limits on coercive interrogation techniques (i.e. where harsh-but-permissible interrogation techniques end and torture or otherwise illegal conduct begins). The Justice Department says no dice. Regardless of one's views of the proper limits of legal interrogation, this should be troubling. As Marty Lederman comments:

there is usually very good reason for not disclosing information on exactly which tactics and methods the CIA has actually used on which detainees, and which techniques have been successful. Much of what the CIA does around the world is kept secret, at least in the short run. But I remain unconvinced that it is necessary to classify the legal limits on the CIA's interrogation techniques -- i.e., to have a secret law that the public and the Congress cannot know about.

In my last post on the D.C. Circuit’s rejection of an amicus brief submitted by former judges, including former D.C. Circuit Judge Abner Mikva, I responded to Mikva’s suggestion that Judges Sentelle and Randolph rejected the brief because of his opposition to privately funded seminars for federal judges. Among other things, I wrote:

As for my accusation against Judge Mikva, he endorsed a report attacking privately funded seminars for judges that included ridiculous charges against sitting judges, including judges with whom he served. One of the charges was that a judge's vote in a case was influenced by having attended a seminar — even though the case was decided before the judge attended the seminar where his mind was allegedly poisoned with "anti-environmental" views.

Timothy Dowling of Community Rights Counsel believes that my characterization of CRC’s work on privately funded judicial seminars was inaccurate. Dowling writes:

I am writing to correct your recent misrepresentations regarding Community Rights Counsel’s position and statements on private judicial seminars. In a 12/30 post at The Volokh Conspiracy, you accuse us of making the “ridiculous” accusation “that a judge's vote in a case was influenced by having attended a seminar even though the case was decided before the judge attended the seminar where his mind was allegedly poisoned with ‘anti-environmental’ views.”

Your post does not identify the case you have in mind (is it Florida Audubon?), but to my knowledge we have never made any such accusation. In fact, our reports on private judicial seminars expressly note the timing of such post-ruling seminars precisely to eliminate any suggestion of influence (e.g., p. 78 of “Nothing for Free,” observing that Judge Sentelle did not attend a FREE seminar until after his vote in Florida Audubon, and contrasting his situation with judges on the case who attended pre-ruling seminars).

Even with respect to pre-ruling seminars, our reports caution against casual inferences of influence or causation. And in our ethics petitions filed with federal appellate courts, we likewise have made clear we are not accusing any judge of improper conduct in a particular case, or of being unduly influenced by any particular seminar. We object to the inevitable appearance problems raised by these seminars as a general matter. We also express concern about the specific appearance issues raised in individual cases when judges attend a private seminar held in close proximity (either shortly before or shortly after) the issuance of a ruling. Litigants in these cases and leading ethics experts have joined us in expressing these concerns.

More to the point, the central ethical problem remains regardless of the seminar’s timing or content. Our position is straightforward: Federal judges should be held to the same ethical standards respecting the travel gifts that attend private seminars as the federal prosecutors that practice before these judges. USDOJ attorneys, other federal attorneys, and indeed all Executive Branch employees are prohibited from personally accepting substantial travel gifts, including those associated with continuing education, offered to them by virtue of their official position. Federal judges should be held to the same standard, as I argue in this Legal Times op-ed.

If you believe that federal judges should be subject to less demanding standards than those that apply to federal attorneys, I’d be interested in hearing your reasons. Alternatively, if you believe Executive Branch employees should be allowed to cash in on their official positions and accept travel gifts for seminars at Hilton Head, Bozeman, and other vacation hot spots offered to them by virtue of their positions as public servants, again I would welcome your contribution to the public dialogue. But your misrepresentations of our position in an attempt to score cheap debater’s points are a disservice to our profession.

The primary thrust of the report was that private judicial seminars are altering judicial opinions, and “breeding a new conservative judicial activism” (p. 2). Nothing for Free warned of

the emergence of a growing anti-environmental judicial activism developing in lockstep with the ideological goals promoted by the Big Three [sponsors of judicial education conferences]. Four key legal issues are focused on, and remarkably, in each area, the author of every leading activist decision has attended at least one Big Three seminar. Most of the judges attended numerous trips, sometimes while a pertinent case was before the court, and sometimes ruling in favor of a litigant backed by the same special interests that sponsored the judge’s trip. (pp. 2-3)

The other example in the standing section of the report is hardly more compelling. Yes, Judge Jane Roth did attend more conferences than Judge Sentelle – a grand total of three during the period in question. She too attended a conference after authoring the decision in question. She also attended one beforehand – but it was two years beforehand. This, CRC tells us, is a “compelling example of the appearance problems that can result” from such conferences. To me this charge is, as I said in my prior post, “ridiculous.”

Judge Mikva authored the Foreword to the report, in which he suggested that “private interests are allowed to wine and dine judges at fancy resorts under the pretext of ‘educating’ them about complicated issues.” (p. iii). I would certainly understand if this upset Judge Sentelle and other judges with whom Mikva served who are attacked in the report, but I do not believe it would influence their judgment in legal matters. In any event, Judge Mikva’s endorsement of the report was particularly unfortunate because, as Judge Randolph documented in this article, the actual seminars, as conducted, present no ethical problems for federal judges.

While CRC’s attacks on judicial conferences have become more nuanced and responsible since the Nothing for Free report, they are still based on misrepresentations of the conferences and the faulty premise that we have something to fear from exposing judges to a variety of viewpoints on broad issues of public importance. (Set aside that CRC conveniently gives some sponsoring organizations, such as the Aspen Institute, a pass; p. 18).

At this point, I think that there is little question that these seminars, as conducted, comply with all of the relevant conflict-of-interest rules for federal judges. Indeed, courts and independent reviews have repeatedly rejected ethical complaints and recusal motions alleging otherwise. For instance, CRC filed an ethics complaint against Chief Judge Danny Boggs for serving on FREE's board. This complaint was dismissed in an opinion finding many of CRC’s attacks lacked “factual foundation” and “typif[ied] the character assassination that is all too common in our Nation's Capital, much of it intended to further the accuser's legislative agenda.” This opinion and various reviews of FREE’s conferences are available from FREE’s website here.

The Federal Advisory Committee on Codes of Conduct of the Judicial Conference’s Advisory Opinion 67 outlines the requirements for privately funded judicial seminars. I believe this opinion (revised as recently as 2004) sets a sensible standard, and there is little question that the programs CRC attacks comply. Among other things, the opinion notes:

The education of judges in various academic and law-related disciplines serves the public interest. That a lecture or seminar may emphasize a particular viewpoint or school of thought does not necessarily preclude a judge from attending. Judges are continually exposed to competing views and arguments and are trained to consider and analyze them.

UPDATE: Tim Dowling responds in the comments below. I did not apologize for my characterization because I believe my post was accurate. CRC's report stated Judge Sentelle's opinion was a "striking example" of the ideological corruption caused by these seminars, insinuating his opinion was altered [influenced by the seminar], and then noted he had yet to attend a conference at which his mind could be polluted by presentations, debate, and discussion on economic and environmental subjects with other judges.

As for CRC's motivations, Dowling's colleagues have reaptedly warned of the allegedly dangerous ideological agenda of the sponsors of the seminars they attack, while (in the 200 report) giving the Aspen Institute a free pass (even though Aspen, unlike some CRC attacks, has even paid the expenses of judges' spouses). If this is not an issue, why is it so central to the 2000 report and other CRC output on the subject? And if ideology is no concern, why does CRC continually misrepresent the content of these seminars? If CRC's position has changed, that is great news, and I will be happy to publish a prominent post noting CRC's repudiation of its prior statements, and acknowledging that many of my criticisms no longer apply.

In the end, Dowling wants the taxpayers to pay for more judicial education, while I am happy to have it done by non-profit organizations, universities and others, while requiring judges to make appropriate disclosures. I think it is clear which approach will expose judges to a wider array of perspectives and educational opportunities. As I've said before, if federal judges — who spend their entire careers listening to persuasive arguments by individuals paid substantial sums to change the judges' opinions — are so easily swayed, these sorts of judicial conferences are the least of our worries.

UPDATE TO THE UPDATE: I corrected a typo above as indiciated. "Altered" was not the word I intended.

FINAL UPDATE: Tim Dowling responds again. Dowling focuses on what may have been an overstatment on my part — did CRC "charge" Sentelle with having been influenced, or merely insinuate as much — without choosing to defend the report as a whole. It's worth noting here that Dowling's own work on this subject, such as the op-ed linked above, is significantly more nuanced and judicious than the report at issue.

The Nothing for Free report repeatedly stresses that the author of "the judges writing the decade’s most activist, anti-environmental opinions have all attended" objectionable seminars (p. 4, emphasis added; for similar statements see pp. 2-3, 62, 78). This would certainly seem to include Sentelle. The "Scorecard" boxes that appear through the report emphasize the point. That, in reconting the details, the report tacitly acknowledges that the case against some judges, such as Sentelle, is weaker than others does not mean CRC did not suggest "all" of the judges were influenced. The broad insinuation is made repeatedly, while the qualifications are tacitly buried well into the text.

In any event, if I'm over-interpreting CRC's language — and seeing more of an attack on Judge Sentelle (for whom I clerked, though not during the case in question) than the language will bear — that hardly exonerates the report, or makes the basic charges less "ridiculous." See, for instance, the report's treatment of Judge Roth who authored the only other standing case it discusses. Thus, I don't believe I owe CRC an apology, though the folks at CRC may wish to consider whether they owe apologies to the judges written about in their reports.

Additional thoughts on the subject — and the debate that prompted it — from Daniel Drezner and Jacob T. Levy. I think they have the last words.

UPDATE: Silly me. Of course Ann Althouse gets the last word — she's a diva.

ANOTHER UPDATE: Will Baude didn't get the message.

It's been quite a year for me: retiring Juan, getting tenured, coming clean, moving to the suburbs, becoming director of the Center for Business Law & Regulation, getting married, and starting the process of adopting the Ellster. I wonder what 2007 has in store.