Last week, in a brief filed on behalf of six large electric power producers, the Obama administration urged the Supreme Court to vacate an appeals court decision (State of Connecticut et al. v. American Electric Power et al.) that would allow states and other parties to sue coal-burning electric utilities for their alleged contribution to global warming-related “injuries.”
The brief clearly lays out the absurdities of attempting to regulate greenhouse gases via public nuisance litigation. Yet the brief stops short of reaching the obvious conclusion implied by its argument, namely that climate policy is a “non-justiciable political question.” Instead, it advises the Supreme Court to direct the court of appeals to reassess its decision on “prudential” grounds.
I smell a rat. The administration, I suspect, does not want the Court to rule that the political question doctrine precludes tort litigation against CO2-emitters, because it wants the only solid, durable shield for industry to be the EPA’s “displacement” of common-law injury claims via the agency’s endangerment rule and ensuing regulatory cascade under the Clean Air Act (CAA).
In other words, just as the administration used the endangerment rule to try and spook Congress and industry into supporting cap and trade, it is now using CO2 tort litigation to try and spook them into supporting — or at least not aggressively attacking — EPA regulation of greenhouse gases via the Clean Air Act.
The administration likely feels some urgency right now about squashing opposition to EPA. In June, Sen. Lisa Murkowski (R-AK) lined up all 41 Senate Republicans and six Democrats behind her resolution, S.J. Res. 26, to stop EPA from regulating greenhouse gases under the Clean Air Act. This was not enough to pass the resolution, which pro-EPA Democrats defeated by a vote of 53-47. However, Republicans are expected to be stronger in the next (112th) Congress, and several Democrats who voted against the Murkowski resolution support West Virginia Sen. Jay Rockefeller’s weak-sister alternative, which would prohibit EPA from regulating stationary sources of greenhouse gases for two years. President Obama has already threatened to veto the Rockefeller bill, perhaps realizing that — once adopted — re-enacting the legislation could become a biennial ritual, mothballing indefinitely EPA’s plans to regulate CO2 from stationary sources.
In short, the administration needs to keep the prospect of CO2 litigation chaos alive in order to sustain the “greenhouse protection racket” — the strategy of regulatory extortion — on which warmists increasingly rely to promote their agenda.
What’s my evidence? Patience grasshopper!
First, some background on Conn. v. AEP: in 2004, the states of Connecticut, New York, California, Iowa, New Jersey, Rhode Island, and Vermont, three environmental groups, and the city of New York sued six electric utilities for supposedly contributing to climate-related injuries. The utilities — American Electric Power, Tennessee Valley Authority, Duke Energy, Southern Company, Xcel Energy, Inc., and Cinergy Corporation — are the nation’s largest emitters of CO2 (or among the largest). 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 2nd Circuit Court of Appeals did not rule on the merits of plaintiffs’ injury claims, but held that those claims “do not present non-justiciable political questions.”
The significance? This case is a very big deal: 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.