NYT Errors in the Air: Today’s New York Times provides more evidence that newspapers should be careful assigning writers to cover subjects about which they know very little. The article, under the misleading headline “Court Rulings on Emissions Sharply Split Two Groups” (emphasis added), contains a mistaken central premise and a major omission. As a result, it provides an incomplete and misleading picture of the Supreme Court’s handling of environmental cases.

The article’s central error (repeated in the headline) occurs in the very fist sentence:

The Supreme Court on Monday, for the second time in a week, issued a decision on emission standards for power plants that cheered industry groups while upsetting environmentalists.

This is simply false. The Supreme Court did not issue a “decision” relating to emission standards on Monday. Rather, the Court denied a petition for certiorari in the case of Leavitt v. Tennessee Valley Authority (see SCOTUSBlog commentary here). This is not the same thing. The Court did not “decide” the case; it refused to hear it. The Court did not hear oral argument or otherwise review the merits of the case, and the Court’s denial of certiorari has no precedential value. This is elementary stuff, and not the sort of mistake one expects in the purported paper of record.

The article’s opening is also highly misleading because the other case to which it refers — Engine Manufacturers Ass’n v. South Coast Air Quality Management District (SCAQMD) — while arising under the Clean Air Act (CAA) has nothing to do with “emission standards for power plants.” Rather, the case addressed the extent to which the CAA preempts local efforts to force fleet owners to purchase low emission vehicles. In that case, the Court ruled 8-1 that such rules are preempted insofar as they operate as de facto vehicle emission standards.

There is another recent Supreme Court decision dealing with the control of power plant emissions under the CAA, Alaska Department of Environmental Conservation v. EPA. The problem here, however, is that in this case the Court upheld the EPA’s effort to force Alaska’s environmental agency to impose more stringent pollution controls on a local facility.

The presence of this case is fatal to the article’s underlying premise that the Court?s handling of CAA cases this year somehow “reflect[s] a certain hostility . . . toward aggressive steps intended to reduce air pollution.” “The common denominator is that their attitude presents a serious threat to clean air,” the article quotes one environmental activist as saying. For “balance,” the article also quotes an industry lawyer claiming the issue in both cases (TVA and SCAQMD) is really the means used to achieve pollution reductions, not the end of cleaner air, but then returns to its central theme, citing “environmental lawyers” who say “the impact of both decisions is poor air quality in regions of the country struggling with air pollution.” (There’s that mistake again!)

If one looks at the Court’s two actual CAA decisions this year, one does find a common denominator: Support for federal preemption of local decision-making in environmental matters. In one case the locals wanted more stringent controls; in the other they wanted less stringent controls. In both cases, these local decisions got preempted by the Feds. [It is also worth noting that in both cases the Court upheld the position of the Bush Administration.]

And what about the TVA case? Doesn’t that cut the other way? Not at all. First, the case does not present the same federal-state split as the Alaska and SCAQMD cases. Moreover, as noted above, the Supreme Court did not decide the case. It is elementary appellate practice that the Court’s decision not to take a case does not reflect any judgment as to the merits. Given the complexity of the issues raised, it is quite possibles the Justices would prefer to see additional lower courts wrestle with the subject before taking up the case. Should the Court eventually address this issue, it’s quite possible that it will side with environmentalists. In the meantime, the NYT should be more careful in its Supreme Court coverage, and avoid misleading stories implying the Court’s record on CAA issues is somehow anti-environmental.