LAW:

Judge's death brings new twist in high-stakes climate case

The outcome of a prominent climate case has become even more shrouded in mystery after one of the three judges considering the matter died this week.

Judge Betty Binns Fletcher, who died Monday at the age of 89, was on the three-judge panel of the San Francisco-based 9th U.S. Circuit Court of Appeals that is weighing the lawfulness of California's new low carbon fuel standard, which is aimed at lowering the carbon intensity of transportation fuels by about 10 percent by 2020. It's part of the state's landmark climate change law, commonly known as A.B. 32.

The appeals court heard arguments in the case Oct. 16. Fletcher's death means the court will draw at random a new judge to be appointed to the panel. The panel could ask the parties to reargue the case, or the new judge could decide to rely instead on the video of the oral argument and the briefs filed by the parties.

"We don't know how the panel tentatively decided the case after argument, but a new judge could definitely change the dynamic and even the outcome, especially since presumably there isn't an opinion in circulation," said Arthur Hellman, a law professor at the University of Pittsburgh School of Law.

Those challenging the regulation include out-of-state ethanol producers and oil refiners, who claim they are unlawfully injured because the law takes into account the life-cycle greenhouse gas emissions of fuel, including emissions produced during production and transportation to California. The challengers say the regulation discriminates against other states in violation of the Commerce Clause of the Constitution, which allows Congress to regulate commerce among the states but stops states from enacting legislation that puts up obstacles to interstate commerce.

The other panel members hearing the case are Judge Mary Murguia, a President Obama appointee, and Senior Judge Dorothy Nelson, who was appointed by President Carter. The October argument suggested that Murguia in particular had some concerns about how regulators had taken life-cycle emissions into account (Greenwire, Oct. 17).

Fletcher, who was based in Seattle, was a prominent liberal voice on the appeals court originally appointed by Carter in 1979. She took senior status in 1998 to pave the way for the Senate to confirm her son, William Fletcher, to the same court.

She continued to hear a full slate of cases, including 182 involving oral argument last year, according to a court news release.

Among her more prominent opinions was a 2008 National Environmental Policy Act (NEPA) case, Natural Resources Defense Council v. Winter, in which the court upheld an injunction that stopped the Navy from conducting sonar exercises off the coast of California due to the potential impact on whales and other marine mammals. Fletcher concluded that the Navy had violated NEPA by failing to issue an environmental impact statement. The Supreme Court eventually reversed the appeals court.

Fletcher also authored an opinion in a 1981 case, Pacific Legal Foundation v. State Energy Resources Conservation and Development Commission, that upheld a California moratorium on the construction of new nuclear plants.

In the statement issued by the court, Chief Justice Alex Kozinski said Fletcher was "a remarkable woman, diminutive in size but with an indomitable spirit."

Her son, who is known for his rulings in favor of environmental interests, said his mother "spoke truth to power, and just as important, she spoke truth in exercising power."

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