The Day Global Warming Comes to the Supreme Court

As American Electric Power v. Connecticut prepares to go to the High Court, previewing what role the federal courts will take, if any, in restricting greenhouse gas emissions

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Reuters/Nguyen Huy Kham

In the absence of any dispositive action from Congress to aggressively reduce noxious emissions that cause global warming, many of the 150 million or so Americans who continue to believe the environmental cause ought to be a desperate priority have set their focus upon American Electric Power v. Connecticut, a Supreme Court case set for oral argument Tuesday morning. But it would be a mistake to think that the Justices, these justices anyway, can or will come up with a ruling that puts to right the nation's course against greenhouse gases.

Instead, it might be best to think of the big case as a sort of Escher drawing. The corporate energy defendants contend that the justices must dismiss a "public nuisance" lawsuit against them because the issue of "climate change" is too broad and "political" to be addressed and resolved by the (unelected) judiciary. The job must instead be left to the Congress and the White House, these folks argue, even as lobbyist-infused Washington continues to refuse to address global warming in any meaningful way. In this convenient (for Big Business) scenario, neither the chicken nor the egg ever come first.

In the meantime, the plaintiffs in the case, or at least the six remaining state plaintiffs, now say that the initial grounds for their long-ago complaint may have been superseded by what they consider to be generally positive events. They say they are now willing to wait to see how the Environmental Protection Agency's proposed new greenhouse gas emission rules play out over the next few years. If the EPA "addresses" (read: restricts) the damage caused by the companies' emissions, the states now say, then their existing nuisance claims would be "displaced" by federal law and would, indeed, have to be dismissed after all.   

So much for the Catch-22 politics of it all. The legal question at the heart of the dispute is whether six large companies which emit greenhouse gases may be forced to restrict those emissions by court order. In 2009, the 2nd U.S. Circuit Court of Appeals answered that question with a big, fat "yes" and allowed a civil lawsuit by public and private plaintiffs to proceed against those companies accused of emitting into the air "approximately one quarter of the U.S. electric power sector's carbon dioxide emissions and approximately ten percent of all carbon dioxide emissions from human activities in the United States."

Once again, as we've already seen so often this Term, the legal battle is not on the merits of the matter but rather on gateway issues like "standing" and jurisdiction. The lawsuit, a blend of modern sensibilities and old-school common law principles, was initiated by eight states and three private land trusts (two of the states, Wisconsin and New Jersey, now run by Republican governors, just recently left the lawsuit). And the concept the complaint pitched was simple: in the absence of any legislative direction, or administrative force, someone somewhere should be restricting the amount of carbon dioxide these companies in particular are releasing into the air.

Specifically, the plaintiffs alleged: that "the emissions and resulting global warming would: increase smog and heat-related mortality in Los Angeles and New York... continue to shrink California's mountain snowpack, which forms the State's largest source of drinking water and has already been diminished by global warming... raise sea levels, thereby innudating low-lying property such as much of New York City's infrastructure.... reduce crop and livestock yields in Iowa... lower water levels in the Great Lakes, harming commercial shipping and hydropower production in New York... make it impossible for several species of hardwood trees to survive in Vermont, Connecticut, New York and Rhode Island.." 

The first federal judge who looked at the case didn't think much of it. It took Chief U.S. District Judge Loretta A. Preska only 19 pages (less than half of which contained legal analysis) to dismiss the complaint against the companies. An appointee of the George H.W. Bush, Judge Preska quickly concluded that the federal courts were no place for a dispute with such obvious policy ramifications. She wrote:

As the Supreme Court has recognized, to resolve typical air pollution cases, courts must strike a balance "between interests seeking strict schemes to reduce pollution rapidly to eliminate its social costs and interests advancing the economic concern that strict schemes [will] retard industrial development with attendant social costs." In this case, balancing those interests, together with the other interests involved, is impossible without an "initial policy determination" first having been made by the elected branches to which our system commits such policy decisions, viz., Congress and the President (citation omitted by me).

Since those other two branches of government did not place limits on carbon dioxide, Judge Preska wrote, she wasn't about to allow the plaintiffs to try to "impose" such limits by "judicial fiat." The case posed non-justiciable policy questions that were beyond the power of judges to resolve, she ruled, because the courts aren't set up for the sorts of "transcendently legislative" matters contemplated by greenhouse gases and global warming. The ruling came down in September 2005. Four years later, by contrast, it would take a panel of the 2nd Circuit panel no fewer than 139 pages to overturn Judge Preska and order her to take the case back for further proceedings, including perhaps a trial.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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