Supreme Court to hear major climate change case

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.

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  • Russell C

    As I described in my Breitbart article last November, “Global Warming Nuisance Lawsuits Are Based on a Fatal Flaw” ( http://biggovernment.com/rcook/2010/11/27/global-warming-nuisance-lawsuits-are-based-on-a-fatal-flaw/ ), we’re told by the entire far-left not to listen to the skeptic scientists because those people have been paid by big coal and oil to ‘make stuff up’ and stretch out the “settled debate”. Problem is, the corruption accusation is not just some generic one, it is solely based on a phrase taken from a 1991 memo – and the memo itself is never show in its complete context by anyone claiming the memo phrase is all the smoking gun proof they need. Worse, one of the lawyers in this Connecticut case has very close ties to the enviro-activist group that successfully promoted the accusation after 1996, as I noted in my article, and this same lawyer also uses the unsupported accusation phrase in his other global warming nuisance case, Kivalina v Exxon.

    Not likely to occur, but what do we suppose would happen if any of the Supreme Court justices happened to notice this particular flaw in the case?

  • J Baustian

    The article repeats a misconception regarding the 2007 case Massachusetts v. EPA, that “the Clean Air Act gave the Environmental Protection Agency (EPA) the authority to regulate carbon emissions.”

    What the Court said:
    “Under the Act’s clear terms, EPA can avoid promulgating regulations only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do. It has refused to do so, offering instead a laundry list of reasons not to regulate,
    Nor can EPA avoid its statutory obligation by noting the uncertainty surrounding various features of climate change and concluding that it would therefore be better not to regulate at this time. If the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment, it must say so.
    The statutory question is whether sufficient information exists for it to make an endangerment finding. Instead, EPA rejected the rule-making petition based on impermissible considerations. Its action was therefore “arbitrary, capricious, or otherwise not in accordance with law,” §7607(d)(9). On remand, EPA must ground its reasons for action or inaction in the statute. (end of quote)

    A careful reading shows that the Court didn’t tell the EPA it must regulate carbon emissions; instead it ruled that the EPA had not provided good reasons why it chose not to regulate CO2.

    So the ruling was a rebuke to the Bush Administration EPA and Justice Department, and to the incompetence of the case they presented. The ruling did not tell the EPA to regulate CO2 — it told the EPA to make its determinations, to regulate or not to regulate, based on the statutes. Or at least that is my reading.

  • Kurtis D. Davis

    Look closely at the oath sworn by the Supreme Court Justices—you will notice that not one of them is obliged to uphold the Constitution, as is every other elected official. This crucial difference means the Court is allowed to add things which are not in the Constitution, and take away things which are. In other words, they are empowered to serve in a legislative manner. As just one example, look at the election of 2000. Clearly the electoral college failed to yield a President, but instead of invoking the 12th amendment, what did the Court do? Had the House lawfully elected a President, likely much history would be different. But we will never know, because the Supreme Court has no more interest in upholding the Constitution than the current President, who recently violated oath of office as per Libya, and ordered the highest echelons of our military to do the same thing. So it probably would not matter even if the Court was obligated to uphold the Constitution. As per the relevant issue, EPA is a vast agency, running out of control—likely because of the previous Court ruling, which broadened EPA power far beyond anything Congress intended. There is a reason why John Boehner read the Constitution—the President and the Supreme Court lack the ability to understand why.

  • virginiagentleman

    So, are we supposed to live in the dark? Cook our food over an outside fire? Wash clothes down at the creek?…..to thephranc.., junk science is right! Global warming is a natural cycle of planet earth, no more, no less. Environazis would have us starving and living in caves! Wonder where they would live, with Al Gore? Sham? Exactly!!

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  • thephranc

    When will this junk science sham end?

    • slehar


    • Mark Matis

      It will be replaced following the civil war, which starts in the next few months. Have you seen the forecast for the winter wheat harvest? Combine that with the REST of the “grains” story, and the path is clear.

      • Kurtis D. Davis

        While I certainly do not hope for it, wide spread civil unrest is always possible, and furthermore, the probability does seem high. It seems the primary reason is lack of Constitutional compliance. The Constitution mandates freedom/liberty for a private population, so there may be creation of tangible wealth, with associated economy. In modern times, We the People are sold out by politicians, who cripple domestic labor with foreign trade agreements, and bring inflation by huge cash transfers to people who do nothing but consume. Current fiscal policy seems to be rendering our currency worthless, with associated chaos.

        • hologram5

          Wide spread civil unrest is already here. We sit upon a smoking powder keg and the fuse is running short. Between the idiot lefties calling for revolution and the goonion thugs perpetrating violence and greed upon the taxpayers, I can see it happening within a few years.

        • virginiagentleman

          Kurtis, widespread civil unrest is already here, my friend. Our very government is in the process of subjugation of the citizenry. I’ve noticed a lot of commenters accross a large number of sites like this one(DC) raising the call for insurrection. Damn scarery if you ask me! Insurrection is the LAST place one can go when all else fails. When government no longer listens to the citizen, when courts rule against the citizens freedom, then we have failed as a society. When race baiters such as nazis and black panthers, etc. hold sway, rather than the peaceful citizen, again, as a society, we have failed. The irony of Virginia’s history is not lost on me. Insurrection is how Virginia and the other colonies became the United States. I’m beginning to wonder if that is indeed, again our fate.

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