Big Wins for Energy in Courts, Congress; Legal Merits Wins Out Over Environmental Absolutism

September 21, 2005 — By National Center for Policy Analysis

DALLAS —b Sound science, judicial restraint and democracy have scored big wins lately both in the courts and in Congress over the combined forces of parochial politics and environmental absolutism, according to National Center for Policy Analysis (NCPA) Senior Fellow Dr. H. Sterling Burnett.

In one instance, a case brought by several states and environmental lobby groups against energy companies to force them to cap emissions of greenhouse gases, was tossed out of U.S. District Court in Manhattan. Judge Loretta A. Preska noted in her decision, “Were judges to resolve political questions, there would be no check on their resolutions, because the judiciary is not accountable to any other branch or to the people.” She also pointed out that Congress has addressed emission limits many times and opted not to impose restrictions.

“These lawsuits have no legal merit,” Dr. Burnett agreed. “The court showed appropriate deference to findings by the legislative and executive branches of government.”

In addition, the U.S. Senate last week rejected an attempt to overturn the Bush Administration’s new mercury emission rules for power plants, which should be a victory for public health, according to Dr. Burnett. For example, the Senate’s action will:

• Give power plants some regulatory certainty, allowing them to cost-effectively reduce emissions.

• Allow power plant operators to develop guidelines for installing new emissions-reduction technologies and shut down the most polluting plants.

• Spark technological innovation as industrial entrepreneurs devise newer, less costly technologies to reduce emissions.

“The appropriate forum to address emission caps is the legislature, not judicial fiat,” said Dr. Burnett. “Therefore, the Senate’s action should inform the decisions of judges with cases pending before them filed by states and environmental groups to overturn the EPA’s mercury rules. Any court not driven by partisan motivations and a desire to replace democratic legislation with judicial decree will have to recognize the Senate’s decision as authoritative.”

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