The last time the Supreme Court heard a major case about climate change, the judges split along ideological lines and ultimately favored the argument that the Clean Air Act gave the Environmental Protection Agency (EPA) the authority to regulate carbon emissions. The decision in Massachusetts v EPA set the stage for the current battle on Capitol Hill that now sees Republicans fighting to rein in the EPA’s extended power to regulate.
On Tuesday, the Court will once again hear a major environmental case that has the potential to actually create policy through the judiciary branch on the subject of climate change. This time, however, some observers are optimistic the justices will leave the policy-making to the legislative and executive branches.
In American Electric Power v Connecticut, six states and one city (Connecticut, Iowa, California, New York, Rhode Island, Vermont and New York City) are arguing that common public nuisance laws give them the power to sue power companies to reduce emissions that cause global warming.
The five utility companies – American Electric Power Co, Southern Co. Xcel Energy Inc, Cinergy Corp and the Tennessee Valley Authority (TVA) – say that climate policy has no place in the courts and should be decided by Congress. They’re also warning that should the case be allowed to proceed, electricity rates would skyrocket.
The fact that the TVA was named as a defendant also puts the Obama Administration in the unique position of fighting attempts to curb emissions. The White House, however, still maintains it wants to regulate emissions from power plants, but federal trumps state policy.
In an interview with The Daily Caller, David Doniger, policy director of the Natural Resources Defense Council’s climate center, defended a state’s ability to sue a power company in another state.
“There is a long tradition for states to bring lawsuits in federal courts against polluters in other states,” said Doniger. “When polluters are in another state and the damage is coming across the border, the state can’t deal with it by its own regulations.”
“The courts have said that the right to a neutral hearing and peaceful resolution [in a federal court] is something states got when they gave up their right to make war on one another over problems of this kind,” Doniger added.
But for conservative thinkers, the states’ argument doesn’t even come close to passing constitutional muster because there is no effective judicial remedy for global warming and if five specific companies were found guilty of causing global warming, then every person, business and company could be sued for emitting carbon dioxide.
“What is clear is that the entire human population produces carbon emissions,” wrote David Rivkin and Lee A Casey, both of whom served in the Reagan and George H. W. Bush administrations, in the Wall Street Journal. “It is impossible to determine whether emissions by any particular power plant – or U.S. electricity production as a whole – have affected global warming trends and if so, how.”
But according to Doniger, the environmental community isn’t going to waste time and money on suing every emitter in the country, and pointed out that the plants targeted in this case release 10 percent of the country’s emissions. “We are acknowledging that suits can only be brought to those who make a meaningful contribution to this kind of pollution,” he said. “That’s not every hotdog stand.”
“The courts can deal with where you draw the line in future cases,” Doniger added. “You could get at most emissions of the country by suing maybe 100 companies. We’re not talking about thousands.”
Some, however, aren’t buying Doniger’s rationale. When the libertarian Cato Institute filed an amicus brief earlier this year, it argued it is impossible to identify causation between the carbon emitted from the five companies and the dangers of global warming and the case is tantamount to policy making rendering it unconstitutional.
“Courts aren’t well positioned to resolve complex issues of science and politics,” Ilya Shaprio, author of the brief told The Daily Caller. “Everybody has a carbon footprint.”
“The jurisprudence about causation and standing are meant to weed out these sorts of cases,” Shapiro added, calling the case the “litigation of a political issue.”
“These are controversial, high-profile debates that are properly left to the political branches.”
Chris Horner of the Competitive Enterprise Institute (CEI) took an even hard line, telling TheDC “All one needs to do is consider the world, the chaos and economic ruin the states are asking the Court to sanction, to see it is nothing the framers or their constitution ever intended.”
“This is the epitome of the ‘political question’ which they left to the political branches exclusively,” Horner added.
But Shapiro is fairly confident the court with side with the utilities. “I don’t think they’ll let this go through,” he told TheDC. “It could even be unanimous.”
Since the 2007 case, the Supreme Court has two different justices – Sonia Sotomayor and Elena Kagan. Sotomayor recused herself, leaving the potential for a 4-4 tie. If that happens, the lawsuit will be allowed to proceed.