Global Warming? Massachussetts v EPA

Personally, I treasure clean air, water, regardless of how hot it gets...it's the pollution, hon.

Here's another "Z" guy, Jonathan Z. Cannon writing in Virginia Law Review:

Last month, the Supreme Court handed down its decision in Massachusetts v. Environmental Protection Agency (“Mass. v. EPA”), its first case dealing with climate change. The decision was an enormous, if narrow, victory for environmentalists: it legitimized their concerns about global warming and their claims that the administration was not doing what it should to address it. Whether the decision was a great victory for the environment remains to be seen, but it will affect the policy debate for years to come. I should make clear that I had a dog in this fight. In 1998, as EPA General Counsel in the Clinton administration, I wrote a legal opinion on the question of EPA’s authority to regulate emissions of carbon dioxide (“CO2”) and other greenhouse gases under the Clean Air Act (“CAA” or “Act”), one of three issues decided in Mass. v. EPA.

Thanks to the guys at SCOTUSblog, who also have this regarding an important new development, if you are thinking about going to the federal courts for relief (what a gas! or should I say, more hot air only?):

Is Twombly the Death-Knell for Notice Pleading?

09:16 AM | Marty Lederman | Comments (1)

In its decision Monday in the antirtust case of Bell Atlantic v. Twombly, the Court expressly (and sua sponte) rejected the half-century-old nostrum from Conley v. Gibson that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Id., at 45–46. The complaint in Twombly alleged a Sherman Act conspiracy (that the petitioners “agreed not to compete with one another”), but did not specifically allege any facts that would establish such an agreement -- and the Court therefore held that the complaint should be dismissed for failure to state a claim. (See Mark Botti's helpful summary here.)

The Twombly opinion not surprisingly has caused quite a stir in civil procedure circles. Does it signal the rejection of notice pleading and, if so, how can it be reconciled with the Court's decisions in Swierkiewicz (2002) and Leatherman (1993)? Can its holding somehow be limited to certain sorts of Sherman Act allegations, or does it have much broader implications for pleading practice?

It looks as though these questions will be hotly debated in the academy and lower courts in the near future. Michael Dorf has a very helpful initial take on the alternative readings of Twombly that are already framing that debate. See also Scott Dodson's reading here. By contrast, Einer Elhauge calls the case "quite insignificant," not to mention unhelpful for resolving longstadning questions with respect to antitrust complaints.

In general, keep your eyes on the Civil Procedure Prof Blog, where the issue is sure to continue to receive a lot of attention..