Climate change heads to the Supreme Court

(from The Wall Street Journal, April 15, 2011)

Green activists hope to force electric utilities and many others to pay ‘public nuisance’ claims for emitting carbon dioxide.


Next Tuesday, the Supreme Court hears American Electric Power v. Connecticut, a case that asks whether America’s climate change policy can be designed and managed by the federal courts. The answer should be a resounding no.

Hoping to force congressional action that would severely restrict greenhouse gas emissions, a series of lawsuits alleging “public nuisance” has been brought by various states, interest groups and activists. They claim that electric utilities and other large emitters of carbon dioxide have injured them by causing or contributing to global warming.

The case now before the Supreme Court was originally thrown out by a New York federal judge as presenting a quintessentially “political question” that only Congress and the president could properly resolve. Unfortunately, the lawsuit was revived on appeal. The judge who wrote that opinion later publicly admitted his hope that his ruling would hang as a “sword of Damocles” over Congress and the president, forcing them to act because of the obvious disruption to the U.S. economy caused by a lawsuit-by-lawsuit approach to climate change.

The Constitution does not permit judges to indulge their inner politician. Besides, there is a more fundamental reason why these lawsuits must be dismissed: Federal courts can only decide cases where the complaining parties have actually been injured by the defendants’ own actions and an effective remedy can be framed in a judicial order. It is, as Justice Kennedy wrote for the court in a case decided earlier this month, “[c]ontinued adherence to th[is] case-or-controversy requirement of [the Constitution’s] Article III [that] maintains the public’s confidence in an unelected but restrained Federal Judiciary.” Climate change nuisance suits fail this “case-or-controversy” test.

It is difficult to imagine a subject less susceptible to judicial resolution. Climate change is a well-established and natural phenomenon. The Earth’s climate has changed dramatically over time. In the 19th century, for example, the northern hemisphere began to emerge from a period of global cooling known as the Little Ice Age. The extent to which man-made emissions like carbon dioxide may contribute to this process of periodic change, and to more recent warming trends, remains unclear.

What is clear is that the entire human population produces carbon emissions, and industrialized economies have done so on a significant scale since the beginning of the Industrial Revolution more than two centuries ago. It is impossible to determine whether emissions by any particular power plant—or U.S. electricity production as a whole—have affected warming trends and, if so, how. Nor can we surmise what party is responsible in whole or in part for the particular plaintiffs’ alleged injuries. The law requires more than a guess.

Even if a court could somehow make this determination, it would be unable to formulate an effective judicial remedy. China became the world’s largest greenhouse gas generator in 2007, and the emissions of other major developing countries are growing rapidly. Were we to shut down the entire American economy, it’s not clear that it would reverse, or even stabilize, the warming process. In other words, a judicial ruling in these cases could never be anything more than a symbolic swipe at the problem, as the appellate court’s decision made clear. Again, our Constitution requires more.

The plaintiffs’ global warming public nuisance claims are very much square pegs in a round hole. Federal common law nuisance actions have been generally limited to cases where activities in one state, such as creating air or water pollution, have a direct and identifiable harmful impact in another state. The federal courts have stepped into such cases because the states have no other mechanism to resolve disputes that may be too limited in scope to warrant congressional action.

By contrast, no action by any of the targeted power companies in this case has polluted the air or water of the plaintiffs’ states. Rather, they claim that the companies’ additions to world-wide carbon dioxide levels have “contributed” to the process of global climate change. Under this simplistic logic, plaintiffs are themselves responsible for at least part of their alleged injuries, since each and every one has a “carbon footprint” that contributes some level of carbon emissions to the global total.

Most carbon-emitting activities make major contributions to economic growth and human civilization. There are no standards or emission caps created by the politically accountable branches of our government that courts can apply in determining which of these activities creates a “nuisance” and which does not. The rank absurdity of plaintiffs’ claims should be obvious to the justices, who should rule decisively that the federal courts do not possess constitutional jurisdiction over climate change cases.

Messrs. Rivkin and Casey served in the Justice Department during the Reagan and George H. W. Bush Administrations and have filed an amicus brief in American Electric Power v. Connecticut.



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