Expect media activism in run-up to Supreme Court’s climate change case

Christopher Horner Senior Fellow, Competitive Enterprise Institute
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Lee Casey and David Rivkin had a piece in yesterday’s Wall Street Journal, “Climate Change heads to the Supreme Court.” The subhead — “Green activists hope to force electric utilities and many others to pay ‘public nuisance’ claims for emitting carbon dioxide” — sets forth the basics of the case, which will be argued Tuesday to determine whether courts can assign individual liability for individual contributions to climate change (really), on the grounds of common law nuisance.

There are several cases in the federal judicial circuits confronting similar claims, from utilities causing or contributing to global warming to oil companies causing or making Hurricane Katrina worse. Imagine if this practice is unleashed.

The Casey/Rivkin piece hits the right notes but also provides context for the next few days’ worth of marches, stories, human interest items and editorials in the establishment press. For example, Washington is presently being swarmed for four days by Al Gore, Van Jones and the left-liberal greenosphere.

History also suggests that there will be media activism in the coming days. In “Red Hot Lies” I detail this practice, opening with when SCOTUS argument loomed in 2006 in another global warming case, Massachusetts v. EPA. The Washington Post “hurled a three-pronged assault of brow-furrowing at the Supreme Court in the days before argument in the important Massachusetts v. EPA case, including heart-wrenching tales of ski resorts in peril,” and an op-ed by Al Gore’s cinematic collaborator Laurie David. The Post also published an unsigned editorial warning the justices that the Georgetown cocktail set was watching them closely on this one and would sure hate to get mean about things.

Whatever their impact on this 5-4 opinion (in which I and two colleagues represented the “skeptic” scientists in their amicus brief to the Court), that case directly led to the extant, looming regulatory train wreck of EPA trying to seize economic regulatory authority through an administrative version of the failed cap-and-trade legislation.

That scheme is so bad that even Sen. Barbara Boxer (D-CA) expressly cited it as a threat to regulated interests that were insufficiently rolling over and accepting cap and trade.

We have the slim Mass. v. EPA majority to thank for that unfolding disaster. They revised the Clean Air Act from how it was written and interpreted for 35 years into a vehicle for ideologues in their push to “fundamentally transform America.”

With next week’s case, things could get worse. Yet the administration is taking a curious line in Tuesday’s argument. It is arguing the substance, but has declined to address whether the “political question” doctrine assigns responsibility for this matter to the political branches. Laurence Tribe, of all people, made a compelling case that, under our Constitution, global warming-related issues should be decided by the political branches. That is, until by order of the Obama administration, he didn’t.

Team Obama wants the Court to step aside in this particular mess, arguing in essence that we’re handling it, but they don’t want a ruling that will impede the trial bar and activist courts from interfering in future cases should the EPA enterprise go down in flames. They want the Court only to rule that Congress has addressed this, as five justices ruled the Clean Air Act is really a global warming regime, and EPA is proceeding on the authority we conjured from the emanations and penumbras of that law.

Their reasoning is transparent and alarming. The administration wants to hold the threat of a global warming industry over the heads of Congress and the regulated economy, to coerce them into folding up their resistance against EPA’s backdoor power grab. The administration seems to believe that, without such threats to get the productive sector of the economy to surrender and settle, it cannot enshrine any such regime politically. That’s instructive.

It is also the sort of cynicism and abuse of government and power we have come to expect from the left-liberals — the environmentalists specifically — and the Obama administration. But that by no means makes it right.

So next week’s case is of extreme importance. As Justice Scalia indicated in his enlightening Mass. v. EPA dissent, we always face the prospect of five justices who want a particular outcome and will labor to get there. As he concluded:

The Court’s alarm over global warming may or may not be justified, but it ought not distort the outcome of this litigation…No matter how important the underlying policy issues at stake, this Court has no business substituting its own desired outcome for the reasoned judgment of the responsible agency.

But here you see the reason for media activism and enviro acting-out in coming days. Remember that when you hear the noise machine cranking up. It’s only an attempt to pressure the judiciary.

Chris Horner is a senior fellow at The Competitive Enterprise Institute.