Today, the Supreme Court held oral arguments in the only environmental case this term, American Electric Power Co. vs. Connecticut. Suffice to say that the Justices sounded downright skeptical of the judicial system's ability to affect climate change. The Obama administration sided with the Midwest polluter defendants, not the (mostly) Northeastern state plaintiffs. Court-watchers expect the decision, to be handed down in June, to bar private nuisance claims.
Details below the fold.
In the AEP v. Connecticut case, California, several mostly Northeastern states, and environmental groups sued Midwestern utilities under a theory of private nuisance law. Nuisance law in California, where I practice, is literally anything that is injurious to health or indecent or offensive to the senses. A person can bring a nuisance suit against a neighboring noisy airport, smelly poultry breeder, or crime-attracting crack house. In AEP, the district court dismissed the lawsuit, but the 2d U.S. Circuit Court of Appeals sided with a coalition of states, environmental groups, and New York City. That decision held that the plaintiffs could proceed with a lawsuit that seeks to force several of the nation's largest coal-fired utilities to reduce their greenhouse gas emissions. Similar cases are pending before the 5th Circuit and 9th Circuit. The cases would effectively give private rights of action to anyone harmed by greenhouse gases -- a number certain to increase as climate change gets worse. By the time the case worked itself up to the Supreme Court, the Obama administration decided to side with the polluters rather than the states on federal supremacy grounds, leading some environmentalists to complain that they felt stabbed in the back.
Today, the Justices seemed at least interested in the merits of the case rather than the procedural intricacies of the federal supremacy doctrine. SCOTUSblog reports that even the liberal wing of the Court seemed skeptical of the idea of a federal district court judge as a super-EPA:
It was left to the Court’s three liberal Justices, who might seem naturally to favor a strong judicial attack on climate change, to dismantle Underwood’s argument that the states should be given their day in court to see if they could prove that the utilities were, in fact, heating up the planet and could be made to “abate that nuisance.” Justice Ginsburg suggested that EPA was moving along nicely to deal with the problem, Justice Elena Kagan said what the lawsuit was after was “the paradigmatic work of agencies,” and Justice Stephen G. Breyer said that, if Underwood really wanted to stop greenhouse gases, she should be advocating that a judge in a nuisance case simply impose a $20-a-ton tax on carbon. When Underwood demurred, Breyer said: “If there is no power to do that, why is there power to do what you want?”
The Los Angeles Times' crystal ball headline writer tells us that the Supreme Court indicates it will dismiss 6-state global warming lawsuit, and the New York Times reports that the states' arguments fall on deaf ears.
The blog Legal Planet finds a small silver lining in Justice Ginsburg's reiteration of Massachusetts v. EPA, holding that the Clean Air Act does give the Environmental Protection Agency the power to regulate greenhouse gases.
Expect a decision barring private nuisance claims in June. The Court's reasoning may be that if it's already given the EPA the authority to regulate greenhouse gases, nuisance lawsuits by private citizens won't be necessary and may in fact create a legal nightmare. That puts all the weight of creating change on the EPA...and us. There is no one else.