- The Washington Times - Monday, November 17, 2008

Some legal experts are warning about pitfalls for President-elect Barack Obama’s aggressive proposals to combat global warming and reduce U.S. dependence on imported oil.

He could be in for a surprise when his policies are challenged in lawsuits that end up before the Supreme Court.

Not all members of the Supreme Court share his desire to beat back the interests of oil companies.

“I think it’s fair to say the Supreme Court has not been sympathetic to environmental concerns,” said John Echeverria, executive director of the Georgetown Environmental Law & Policy Institute.

The most recent decision he mentioned was last week, when the Supreme Court removed many restrictions on the Navy’s use of sonar off the California coast. Environmentalists said the sonar injured whales and other marine mammals, sometimes contributing to beaching of whales and further endangering species.

The Navy denied there was proof of danger to marine mammals.

The Supreme Court ruled the national security interest of Navy sailors properly trained in how to use sonar was a higher priority.

Last June, the Supreme Court limited the punitive damages that oil company Exxon Mobil Corp. must pay for the 1989 Exxon Valdez oil spill in Alaska.

The court said punitive damages could not exceed the economic loss compensation companies must pay for marine accidents, or about $500 million in the Exxon Valdez case.

Otherwise, Exxon Mobil could have been forced $2.5 billion in punitive damages to about 33,000 Alaskans.

The decision was widely criticized by environmentalists but praised by business groups.

The Supreme Court also clamped down on government regulation in a 2006 case that limited the Environmental Protection Agency’s control over non-navigable waterways, such as drainage ditches.

Despite Mr. Obama’s pledge of “change” from Bush administration policies, “The membership of the Supreme Court is the same this term as it was last term,” Mr. Echeverria said.

In other words, the court interprets federal law by itself, regardless of who gets elected president.

The extent of Mr. Obama’s potential conflicts with the Supreme Court on environmental policy can only be guessed, but his statements during his presidential campaign give hints.

“We are not acting as good stewards of God’s Earth when our bottom line puts the size of our profits before the future of our planet,” he said during an Oct. 14, 2007, speech at an interfaith forum on climate change.

Mr. Obama’s proposals have included calling for all new buildings to be carbon neutral by 2030, reducing U.S. oil consumption by at least 35 percent by 2030, and raising fuel-economy standards for cars to 40 miles per gallon by 2020.

Whether industry can meet the goals is an unresolved question, one that could lead to Supreme Court decisions that run contrary to the new president’s policies, said Paul Kamenar, senior executive counsel for the Washington Legal Foundation, a public-interest law and policy center.

“To the extent there are such decisions, Obama cannot override that unless Congress changes the statutes,” Mr. Kamenar said.

Mr. Obama’s best chances for avoiding conflicts with the Supreme Court are likely to come from efforts to control greenhouse-gas emissions, he said.

In April 2007, the Supreme Court ruled the Environmental Protection Agency could regulate automobile carbon dioxide emissions under its Clean Air Act authority despite a Bush administration policy that exempted them.

“That is obviously something I think the Obama administration would have agreed with,” Mr. Kamenar said.

Above the Law runs on Mondays. Call Tom Ramstack at 202/636-3180 or e-mail [email protected]

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