The Day Global Warming Comes to the Supreme Court

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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least the six remaining state plaintiffs, now say that the initial grounds for their long-ago complaint may have been superseded by what they consider to be generally positive events.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.

The 2nd Circuit came to its markedly different conclusion by probing the arguments offered by the defendants more closely than the trial judge had done. The magnitude of the case, the appellate panel found, didn't have to be as "big" as the defendants and Judge Preska had made it out to be. It was not, as the trial judge had suggested, an order of magnitude different from other big cases federal courts handle all the time. Here's a telling passage from the 2nd Circuit opinion:

Defendants' characterization of this lawsuit... magnifies to the outer limits the discrete domestic nuisance issues actually presented.... Nowhere in their complaints do Plaintiffs ask the court to fashion a comprehensive and far reaching solution to global climate change... Instead, they seek to limit emissions from six domestic coal-fired electricity plants on the ground that such emissions constitute a public nuisance that they allege has caused, is causing, and will continue to cause them injury. A decision by a single federal court concerning a common law of nuisance cause of action, brought by domestic plaintiffs against domestic companies for domestic conduct, does not establish a national or international emissions policy (assuming that emissions caps are even put into place).

The plaintiffs had standing to pursue their claims, the 2nd Circuit ruled, and the federal law of public nuisance, imported from England along with the colonists, did not preclude either the public entities or the private trusts from suing. Moreover, the Clean Air Act and the EPA had not (at the time anyway) expressly foreclosed such lawsuits through their own efforts to curb greenhouse gas emissions. Whatever else it means, the long 2nd Circuit ruling reads like an earnest effort by judges to allow a vital dispute to be resolved in a court of law rather than allow it to be left unresolved in the political forum.

But that concept is not likely to be greeted warmly by the justices. No matter what anyone says in court Tuesday, the Supreme Court's conservative majority is widely expected to disagree with the 2nd Circuit's assessment, overturn its decision, and block off avenues for such lawsuits to succeed in the future. Nor is it even a given that the Court's liberals will be eager to keep the lawsuit alive. And Justice Sonia Sotomayor already has recused herself from consideration of American Electric Power because she was part of the appellate panel that heard argument on the case at the 2nd Circuit (before she was elevated in 2009 to the High Court).

But don't worry about the remaining eight justices being lonely up there in their robes on Tuesday. No fewer than 30 different organizations and associations have filed ponderous "friends-of-the-court" briefs trying to push the Court to one side or the other. In a case about hot air that, indeed, is a lot of hot air. And almost all of it has to do with 1) contemplating what role the federal courts should take, if any, in dealing with global warming; 2) pretending that Congressional authority to handle something like reducing greenhouse gas emissions is the functional equivalent of Congress' ability to do anything about the problem.

On that note, let's give the last quote to the energy companies. When they appealed their cause to the Supreme Court, the corporate lawyers came back to the "too-big-to-adjudicate" rationale that Judge Preska had adopted in her 2005 ruling. In their opening brief, the defendants wrote:

The Second Circuit... held that there exists a federal common law nuisance cause of action for contributing to climate change. Such a claim could be pursued by anyone who claims to be affected by climate change against any source of greenhouse gas emissions. It would empower courts to determine the "reasonable" level of global greenhouse gas emissions, allocate them among economic sectors, and order individual actors to conform their emissions to the court's judgments. These lawsuits would thus allow federal judges, acting without statutory authority or guidance, to adjudicate competing claims about appropriate global, national, and industry-wide emission levels by making policy decisions and tradeoffs that the Constitution commits to the political branches and over which Congress by statute has delegated significant authority to the [EPA].

Policy decisions and tradeoffs that the Constitution commits to the political branches. It sounds so noble. So sensible. Which is why the leaders of those "political branches" ought to see this litigation as record proof of their own lingering failure to adequately address yet another compelling problem the nation faces. That's the true lesson of American Electric Power, no matter what the Court decides after Tuesday's argument.

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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, and a fellow at the Brennan Center for Justice.

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