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November 24, 2006

Supreme Court: Anti-trust, Global Warming & Affirmative Action

Following up on the previous post about the abortion cases the Supreme Court is hearing, here's some information about others regarding anti-trust law that could be very consumer unfriendly, global warming that could be very unfriendly to the earth's inhabitants, and affirmative-action that could be very minority and diversity unfriendly.  The overviews of each case are from Cornell Law's case preview combined with some of my own commentary.

Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co., Inc. (05-381)

For anyone interested in the concentration of corporate power, this is a case to follow. Don't get bogged down in the technical details of the price elacticity of hardwood trees in the Northwest. Basically, Weyerhaeuser used its larger size and presence in the market to bid up the price of trees and force Ross-Simmons out of business. Weyerhaeuser claims they are more efficient and of course they won't change their pricing practices is Ross-Simmons fails and Weyerhaeuser has a monopoly.

If the Supreme Court decides the merits of the case, then it will clarify whether there is a stricter standard for showing anti-competitive practices, or whether it will be easier. A decision for Weyerhaeuser will mean many big companies will feel emboldened in messing with smaller companies - trying to squeeze them and make the most of the larger company's power. [Many of you liked the TicketMaster Sucks post, which connected the  outrageouly high 'convenience fees' with monopoly power - and this case has the potential to make the TicketBastards and a large number of other companies more smug about engaging in anti-competitive and anti-consumer behavior.] A decision for Ross-Simmons will give some additional protection to relatively smaller companies and in a small way help keep a competitive environment.

From Cornell Law School's preview:

Antitrust law is built around the concept that a business should succeed because the business makes its product better, faster, or cheaper than other businesses, and not as a result of a monopoly or underhanded tactics. Businesses compete with one another to improve the quality of their products and operations, which will benefit consumers by delivering a better product at lower cost. Large companies often have major advantages over small companies because the large-scale operation is more efficient and involves less cost per unit produced. Brief for Petitioner at 11. Here, Weyerhaeuser could afford to pay more for sawlogs because its other costs were lower. Id. at 7. But did Weyerhaeuser use that advantage improperly to eliminate competition? This question highlights the difficulty in determining whether a company violated antitrust law or was actually engaged in normal competitive practice. The standard used to determine improper conduct is a critical. Since antitrust law’s purpose is primarily to encourage competition, the employed standard should not chill competition. Brief for Petitioner at 2. When antitrust law is proposed to apply to an activity or practice, the implications of that application must be considered: will the result in the case and the standard that is created encourage competition or, in fact, discourage it? Id. at 10–11.

It's interesting to note that the States of California, Oegon, Arizona, Louisiana, Montana, and West Virginia filed a joint amicus ("friend of the Court") brief in favor of Ross-Simmons: "Amici States also have an equal interest in protecting consumers and the marketplace from those who adopt abusive tactics in seeking to manipulate the market and suppress competition. As procurers of a vast array of products and services, amici States have found that encouraging competitive bidding from multiple sources enables them to obtain at the best price for goods and services, including inputs and final products, required by their agencies, municipalities, and educational institutions."

Supporting Weyerhaeuser there's a joint amicus from AT&T, Bellsouth, GE, Quest and Verizon. The Bush administration also sides with Wyerhaeuser, as does the Chamber of Commerce. Frankly, the Chamber of Commerce annoys me greatly by being so anti-consumer, anti-worker and even anti-small business. They've also been at the forefront of lobbying for significant rollbacks of Sarbanes-Oxley because of big contributions by companies that find it a hassle to report accurate numbers and be accountable for fraudulent statements.

As usual, good resources from Cornell law - all the briefs from both sides, a case summary and background on anti-trust.  

In discussing potential Supreme Court nominees, we frequently look at areas like abortion and civil rights. While these are obviously important, there's a category of 'business' decisions that also affect us and that we should be concerned about. I mention this because Justice Stevens will most likely retire in the next two years and we'll be doing this process relatively soon. We need justice who support a woman's right to choose and who value the right to privacy, but they should also be willing to provide a check on unfettered corporate power.  

Massachusetts v. Environmental Protection Agency (05-1120)

From Cornell Law's preview

In October 1999, several environmental groups petitioned the U.S. Environmental Protection Agency (the "EPA") to use its power to regulate carbon dioxide and other greenhouse gases from new motor vehicles. According to these groups, greenhouse gases should be classified as "air pollutants," which can be regulated under the Clean Air Act if they "can be reasonably anticipated to endanger public health or welfare." Among the possible "dangers" to welfare, the Clean Air Act lists effects on "weather" and "climate." However, almost four years later, the EPA officially denied the petition, saying that the Clean Air Act did not give the EPA the authority to regulate greenhouse gas emissions and, even if it did, the EPA would deny the exercise of such authority. According to the EPA, the causal link between greenhouse gases and global warming has not been proven conclusively.

This case obviously raises some significant issues about global warming, although I'm skeptical that the Court will decide this one on anything close to the merits. For those who are interested, I'd suggest checking out the preview, which includes a link to the amicus filed by the climate change scientists ["Most of these scientists are members of the National Academy of Sciences (“NAS”) or Engineering, or have served on one or both of two recent National Academy of Sciences/National Research Council (“NAS/NRC”) panels that have reviewed the state of the science on climate change and the impacts of human activities on climate].

A few excerpts:

A consensus of scientists now working on climate change holds that it is likely that emissions of carbon dioxide and other greenhouse gases from mobile sources and other anthropogenic sources have already had an effect on the earth's climate and are changing the Earth's climate in ways that are significantly increasing the risk of adverse impacts on public welfare. That consensus was contained in the 2001 NAS/NRC report that the federal government requested to provide the Bush Administration with an assessment of the areas of greater and lesser certainty in climate change science.

1. The basic physics underlying the greenhouse effect is firmly established.

2. Over the last two centuries, it is virtually certain that human activities have increased the amount of greenhouse gases in the atmosphere to a level not seen in all of human experience, and likely not seen for at least 3 million years.

3. It is likely or very likely that human-induced increases in greenhouse gases are already causing global climate to change.

4. It is virtually certain that what has been observed so far is only the beginning, and that continued greenhouse gas emissions along current trajectories will cause additional warming of the earth system as a whole, and very likely that such perturbation would cause the rate of surface warming and sea level rise in the 21st century to be substantially larger and faster than that experienced in the 20th century and without precedent in the past 10,000 years.

5. Although the general link between increased greenhouse gases in the atmosphere and increased warming of the earth system is virtually certain, the complexity of the climate system means that predictions of specific details that follow from this general link are subject to varying degrees of certainty.

6. The possibilities of the above-mentioned climate changes have been carefully and extensively assessed, and there is a broad scientific consensus that these changes are likely or very likely.

7. Apart from the likely, very likely, and virtually certain gradual climate changes outlined in points 4 and 5, there is also an as yet unquantifiable probability that continued greenhouse gas emissions will trigger abrupt climate change surprises that could very rapidly impose large impacts on ecosystems and human societies.

You probably knew that already. Most people know that; it's just that Bush's EPA doesn't know it because of money of money from the oil industry. 

I'll take a wild guess that the main issue will be standing, the legal doctrine about the ability of a party to sue (in this about the level and directness of harm). Cornell Law summarizes the issue:

The EPA argues that Petitioners do not have standing to bring this case because they have failed to allege and show any particularized harm for each individual state. Id at 14. Instead, says the EPA, Petitioners have shown only that emissions of certain gases that the EPA had failed to regulate may cause an increase in the temperature of the earth, that this is a harmful phenomenon to humanity as a whole, and that Petitioners represent segments of humanity at large. Mass. v. EPA, 415 F.3d at 60. This argument, argues the EPA, is much too general and speculative to qualify as the kind of particularized harm necessary to make out an Article III controversy in federal courts. Brief for Respondent at 15.

Anticipating this argument, Petitioners filed two volumes of declarations with the court, from scientists, engineers, state officials, homeowners, users of the nation’s recreational resources, and other individuals. Mass. v. EPA, 415 F.3d at 54. The declarations as a whole predict drastic consequences from global warming caused by greenhouse gases, including loss of or damage to state and private property and increased health care costs. Id.

I'd look for the Court to duck the substantive issue in favor of a narrow, technical/procedural ruling that disposes of the case and leaves the status quo in place. If you'd like to know more about this, check out the column at Findlaw.com, which starts: "In an interview at the University of Miami last week, Chief Justice John Roberts stated that it is more important for the Supreme Court to speak with one voice by deciding cases "on a narrow basis," than to issue bold opinions that conclusively resolve large legal issues." (In case you're wondering where the author stands: "In championing narrow Supreme Court rulings, I argue, Roberts risks undercutting an essential function of the judiciary in our constitutional system.")

Parents Involved in Community Schools v. Seattle School District No. 1 (05-908) 

Another equal protection/affirmative action case that will be closely watched. Cornell Law summarizes the background:  

Seattle School District No. 1 uses an “open choice” plan in which students rank their preferred schools. When a student’s first choice cannot be accommodated, the District uses race as a tiebreaker in order to achieve a desired racial balance in each individual school. Parents Involved in Community Schools, a non-profit organization, argues that the District’s policy amounts to unconstitutional racial balancing under the Supreme Court’s 2003 decisions in Grutter v. Bollinger, 539 U.S. 306 (2003) and Gratz v. Bollinger, 539 U.S. 244 (2003). The District, however, argues that its consideration of race is to further the compelling state interest of achieving the beneficial effects of racial diversity. The Court of Appeals for the Ninth Circuit held that the District had a compelling state interest in achieving the benefits of racial diversity and that its plan was narrowly tailored. The Supreme Court will now review that determination in light of its Equal Protection decisions in Grutter and Gratz and is asked to decide whether racial diversity in high schools is a compelling state interest. (emphasis Paul's)

Unlike the cases above, I think the Court will engage the merits here. I'd hope even this Court could see diversity as compelling enough to be allowed to decide a tiebreaker. But I wouldn't put money on that outcome.  

Once again, good brief by Cornell Law with links to briefs and this history of Grutter and Gratz.  

There's a related case, Meredith v. Jefferson County Board of Education, (05-915).  The challenge is to a requirement that 15-50% of students in each school be African-American. My guess is the Court will see this as a quote that Bakke stuck down and they wll not spend too much time with it.


In addition to the previews, anyone who wants even more reading can pull up transcripts of the oral arguments. The Supreme Court refuses to allow television into the chambers for argument, but they do allow audio recordings, and they do transcribe all the oral arguments so they can be freely made available from the Court's website.  oral arguments for these cases are in early December.

For additional perspective, check out The Supreme Court's Greatest Hits 2.0

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