Environmental activists, supported by a cadre of impassioned academic lawyers, have been looking to the common law of nuisance as a way to appeal directly to the courts and circumvent the administrative and legislative processes of government. On June 20th, a unanimous United States Supreme Court dealt a blow to their theory. In American Electric Power v. Connecticut, the Court ruled that the Clean Air Act preempts a claim that carbon emissions from fossil fuel-fired power plants constitute a nuisance under federal common law. Although the law professors who came up with the idea that traditional nuisance law can be applied to climate change are doing their best to find silver linings in the Court’s opinion, the decision is a blow to environmentalist efforts to turn courts into environmental regulators.
In a nutshell, the plaintiffs’ theory is that carbon emissions from fossil fuel-fired power plants are analogous to the smells and sounds emanating from a pig farm in an urban area. There is little doubt that a pig farm in the city is a common law nuisance. The costs to society in the form of unpleasant sights, sounds and smells far outweigh the costs of moving the pig farm to a rural location. But in the case of fossil fuel-fired power plants, relocating does nothing to reduce a plant’s contribution to global atmospheric carbon accumulation. In other words, the only solution to the “nuisance” of carbon emissions is to curtail emissions. Of course that is the point of the climate-change-as-nuisance lawsuits. If a court is willing to conclude that carbon emissions are a nuisance, the only remedy will be for the court to order a reduction or elimination of emissions.
The climate-change-as-nuisance strategy is part and parcel of a broader effort to bypass recalcitrant legislators in favor of judicial intervention. The recently unveiled barrage of legal actions in every state of the union, brought on the basis that state failure to restrict greenhouse gas emissions violates the public trust doctrine, has the same objective and is founded on a similarly creative interpretation of the common law. (See my May 20 commentary here.)
There are numerous problems with these appeals for judicial intervention in the politics of climate change. Most obvious is the separation of powers. It is the duty and responsibility of courts to enforce vested rights and to limit the executive and legislative branches of government to their constitutional powers. But judicial imposition of carbon emissions reductions would be a clear usurpation of legislative and executive power, and that is what the nuisance and public trust lawsuits ask the courts to do.
A second problem with these climate change lawsuits is that the common law must be stretched beyond recognition for the plaintiffs to prevail. As George Mason University professor Todd Zywicki has pointed out, the common law is a demand-side enterprise, in which judges “articulate the tacit beliefs and expectations that undergird the ongoing order of the community.” In contrast, the climate change plaintiffs embrace a supply-side theory pursuant to which judges do what they think is best for society, even when society’s elected representatives have determined otherwise.
Justice Ginsburg’s opinion in AEP v. Connecticut does not address the merits of the nuisance theory, but, in the course of explaining that the Clean Air Act has preempted any claims based on federal common law, she underscores a third problem inherent in judicial interventions in complex policy matters. “The expert agency is surely better equipped to do the job than individual district judges issuing ad hoc, case-by-case injunctions. Federal judges lack the scientific, economic and technological resources an agency can utilize in coping with issues of this order.”
These institutional limitations of the courts exist whether or not the Clean Air Act preempts nuisance claims. That is why the climate-change-as-nuisance theory is fatally flawed, and why similar nuisance actions in state courts should be dismissed (though they, too, may be preempted), along with the recently filed public trust cases.
From the perspective of a legal professoriate that overwhelmingly supports the supply-side case for creative judicial intervention in the name of the common law, the silver lining in the AEP ruling is the reaffirmation by four justices (plus, it is presumed, the recused Justice Sotomayor) of the 2007 Massachusetts v. EPA decision in which the Court held that the Clean Air Act authorizes EPA regulation of carbon emissions.
No doubt EPA Administrator Lisa Jackson will be emboldened to press ahead with aggressive regulation of carbon and other greenhouse gas emissions, but at least Congress can put a stop to EPA regulation — if it has the political will. Better a power-grabbing executive agency over which Congress has direct control than the occasional rogue judge reinventing the common law to suit his or her policy preferences.
Jim Huffman is the dean emeritus of Lewis & Clark Law School, the co-founder of Northwest Free Press and a member of the Hoover Institution’s De Nault Task Force on Property Rights, Freedom and Prosperity.