Will the Supreme Court Empower Trial Lawyers to ‘Legislate’ Climate Policy?

Will the Supreme Court Empower Trial Lawyers to ‘Legislate’ Climate Policy?

December 11, 2010
Originally published in Pajamas Media

Earlier this week, the Supreme Court agreed to hear an appeal from five electric utilities in a case called State of Connecticut v. American Electric Power.  The utilities are challenging an appellate court decision that the “political questions” doctrine does not bar states and other plaintiffs from suing emitters of carbon dioxide (CO2) for injuries alleged to result from CO2-induced global warming.

Troutman Sanders, a law firm with an extensive environmental practice, provides excellent summaries of the history and basic issues of the case. In a nutshell, in 2004, eight states (led by Connecticut), New York City, and three environmental groups sued five electric utilities, arguing that the companies’ CO2emissions created a significant public nuisance. Plaintiffs asked the court to fashion a remedy whereby the utilities would be required to reduce their CO2 emissions by a “specified percentage each year for at least a decade.”

In September 2005, Southern New York District Court Judge Loretta Preska dismissed the lawsuit on the grounds that regulating greenhouse gases is a “non-justiciable political question.” In September 2009, however, the 2nd Circuit Court of Appeals overturned Judge Preska’s decision. The appellate court did not rule on the merits of plaintiffs’ injury claims, but held that those claims “do not present non-justiciable political questions.” The utilities appealed that decision to the Supreme Court, which this week agreed to review the case.

A victory for Connecticut et al. would be a boon to ambulance chasers both at home and abroad but a bane to the U.S. economy. It would also further erode our constitutional system of democratic accountability.

Carbon dioxide is the inescapable byproduct of the carbon-based fuels that power modern manufacturing, agriculture, and commerce. This means that classifying CO2 as a “public nuisance” has an enormous potential to endanger public health and welfare. As the American Farm Bureau Federation noted in an amicus brief on a related case (Comer et al. v. Murphy Oil et al.), pre-industrial society “was not a healthy society,” even though CO2 concentrations were 35% lower than they are today.

Like the politicians who assured an earlier generation of Americans that the income tax would apply only to the super rich, plaintiffs in Connecticut v. AEP say they just want to compel the nation’s biggest coal-burning utilities to cut their emissions. However, once the precedent is established, there can be no principled basis for shielding any class of emitters from tort claims. As I explained previously on Pajamas Media:

If litigators can sue large utilities for emitting CO2, they can also sue smaller utilities and manufacturers. Indeed, they can in principle sue anyone and everyone. Utilities, after all, only emit CO2 in the process of serving customers who use electricity. People lighting their homes, powering their factories, and running their laptops are ultimately to blame for destroying the planet, according to the “science” invoked by plaintiffs. In their worldview, everybody is injuring everybody else — which implies that everybody has standing to sue everybody else. Plaintiffs may preach “green peace,” but they sow the seeds of a war of all against all.

Since global warming is, by definition, global, and since anyone anywhere on the planet who uses carbon-based energy, or consumes goods and services made or transported with carbon-based energy, contributes to CO2 emissions, both the pool of potential victims and the pool of alleged perpetrators number in the billions! This despite the fact that without carbon-based energy, billions of people would starve and/or freeze in the dark, and billions more would not even exist.

The Court’s decision in its earlier global warming case, Massachusetts v. EPA, proved to be a font ofabsurd results. For example, regulating greenhouse gases via the Clean Air Act would crash the statute’s preconstruction and operating permits programs, crippling both environmental enforcement and economic development. As EPA acknowledges, once CO2 is classified as a “regulated air pollutant,” literally millions of previously unregulated entities — office buildings, big box stores, restaurants, churches, hospitals, and schools — meet the permitting program definitions of “major emitting facility.” EPA’s solution — “tailoring” the definitions to exempt non-industrial facilities — substitutes one absurd result for another. “Tailor” is just a euphemism for “amend,” and an administrative agency cannot amend a statute without violating the separation of powers.

One hopes the Court has learned something from the “glorious mess” that its earlier decision teed up.Mass. v. EPA’s legacy of absurd results could well be chump change compared to the Hobbesian nightmare that will ensue if the Court decides Connecticut v. AEP in favor of plaintiffs.

If plaintiffs win, firms large and small will face the threat of interminable litigation, from a potentially limitless pool of plaintiffs, in which multiple courts, acting without benefit of statutory guidance, improvise remedies — both injunctive relief and damage awards — as they see fit. In short, a victory for plaintiffs will destroy for many firms the legal predictability essential to business planning.

In addition, climate policy would be made by persons even less accountable than the non-elected bureaucrats at EPA, who at least depend on congressional appropriations for their budgets and salaries. We would have to live under Kyoto-like energy-suppression mandates imposed neither by Congress nor by EPA but by trial lawyers and activist judges appointed for life.

As noted earlier, plaintiffs asked the lower court to require the utilities to reduce their CO2 emissions by “specified percentage each year for at least a decade.” That such a “remedy” is legislative in nature should be obvious. It is not an order to cease and desist but a policy regime, complete with targets and timetables, ostensibly based on a balancing of the public’s incontrovertible interest in access to reliable and affordable electric power with its supposed interest in climate change mitigation. Such a remedy is clearly beyond the competence of courts and juries to devise, as the Justice Department argued in itsamicus brief on half of the Tennessee Valley Authority:

Establishing appropriate levels for the reduction of carbon-dioxide emissions from power plants by a “specified percentage each year for at least a decade” (as Plaintiffs request), would inevitably entail multifarious policy judgments, which should be made by decision-makers who are politically accountable, have expertise, and are able to pursue a coherent national or international strategy — either at a single stroke or incrementally.

No doubt plaintiffs initially hoped the specter of CO2 litigation chaos would spook industry into supporting cap-and-trade as a lesser evil, just as many climate activists hoped the prospect of EPA regulation of greenhouse gases via the Clean Air Act would tip the political scales in favor of the Waxman-Markey bill. However, this extortion strategy, which I call the greenhouse protection racket, has not worked and may even have backfired, exposing climate crusaders as self-righteous bullies.

In November, angry voters punished supporters of the stealth energy tax formerly known as cap-and-trade. They’ll be even angrier if the Supreme Court empowers ambulance chasers to “enact” the job-killing, anti-energy policies they just rejected at the polls.