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Orders: Court grants global warming, four other cases

UPDATE 11:41 a.m.

The Supreme Court on Monday agreed to decide whether the Environmental Protection Agency has a duty to regulate “greenhouse gases” as a strategy to deal with global warming. The case is Massachusetts, et al., v. EPA (05-1120).

The Court also agreed to rule on two antitrust cases, a patent case, and a Title VII employment case. The Court refused, however, to be drawn into a dispute between the Justice Department and the Federal Trade Commission over patenting of medicines — specifically, Schering-Plough’s “K-Dur 20,” a supplement used for patients with high blood pressure or congestive heart failure.

In the EPA case, that agency concluded that it did not have the authority under the Clean Air Act to regulate emissions of carbon dioxide and other “greenhouse gases” from new cars and trucks and, even if it had that authority, it would not exercise it for policy reasons. The D.C. Circuit Court upheld that ruling, but the Justices agreed on Monday to hear an appeal by Massachusetts, 11 other states, three cities, and a variety of environmental groups. Both issues — EPA’s authority, and its discretion not to regulate in this field — are before the Court in the case. The case does not directly raise a “standing” issue, although that was debated vigorously in the Circuit Court and by EPA in replying to the appeal. Presumably, the Justices will have to determine on their own if any of the challengers did have a right to sue; EPA will probably press the issue in its merits brief.

The antitrust cases to be heard next Term are Weyerhaeuser v. Ross Timmons (05-381) and Bell Atlantic v. Twombly (05-1126). The first tests the application of Sherman Act Section 2 to “predatory buying” — buying goods at higher prices to put them beyond competitors’ reach. The second asks the Court to clarify the standard for deciding whether to dismiss pre-trial an antitrust lawsuit claiming that competitors took parallel action to stop competition, but without an explicit agreement to do so.

The patent case is KSR International v. Teleflex (04-1350). The case seeks clarification of when an invention is an obvious outgrowth of prior technology, and thus is not eligible to be patented.

The labor case to be heard is Ledbetter v. Goodyear Tire & Rubber (05-1074), seeking a ruling on the legal formula to be used in calculating the timing of unequal pay decisions by employers for purposes of Title VII lawsuits.

The Court denied review in FTC v. Schering-Plough (05-273). The Commission’s appeal sought clarification of the legality, under federal antitrust law, of a payment by a maker of a brand-name drug to a potential maker of a competing generic drug to delay putting that alternative medicine on the market. In denying the appeal, the Court took the advice of the U.S. Solicitor General and the Justice Department, and impliedly rejected FTC’s suggestion at least to hold the case until after a potentially significant ruling by the Second Circuit in a similar case. Justice Breyer did not take part in Monday’s order.

The Court invited the U.S. Solicitor General to offer the federal government’s views on a case testing whether a veteran who has opted for military disability pay instead of retirement pay must share the proceeds with a former spouse under state law (Padot v. Padot, 05-1076). The Solicitor General was also asked to supply views on a pauper case, Murphy v. Oklahoma (05-10787). That case tests whether Congress has disestablished the Muscogee (Creek) Nation of Indians, and thus its allotments do not remain within tribal boundaries for purposes of state criminal prosecution of tribal members. The case involves a tribal member, Patrick Dwayne Murphy, who was convicted in state court of a capital crime, and sentenced to death.

Among the cases that the Court refused on Monday to hear were continuing disputes over the ownership of copyrights on famous works — A.A. Milne’s “Winnie the Poor” stories for children, and General Dwight D. Eisenhower’s war memoir, Crusade in Europe. The Winnie the Pooh appeal was by Milne’s granddaughter, Clare Milne (Milne v .Slesinger (05-1332). The Crusade in Europe issue arose in Dastar Corp. v. Random House (05-1259) — a case that the Court had heard earlier on a trademark issue and decided in Dastar’s favor; Dastar, however, later lost on the copyright issue.

The Court also declined to hear three separate appeals testing the constitutionality of state vanity auto license plates that display the anti-abortion phrase “Choose Life.” Two of those cases also raised issues about whether challenges to such laws are barred by the federal Tax Injunction Act. The Court usually does not explain its denials of review. The denied cases were Keeler v. Stalder (05-1222), ACLU of Tennessee v. Breeden (05-1389), and New Life Resources v. ACLU of Tennessee (05-1483).

The Court also bypassed an important issue in criminal law: whether individuals on parole or probation or under supervised release following their criminal convictions have Fourth Amendment protection against a requirement that they provide a DNA sample when there is no suspicion they have done anything else wrong. The issue was raised in Sczubelek v. U.S. (05-7955). Justice Samuel A. Alito, Jr., a former Third Circuit judge, took no part in the order denying that appeal from that Circuit Court.

The Supreme Court has yet to act on another case also raising the same DNA sample issue, Johnson v. Quander (05-11230). An earlier post on these two cases can be found here.