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Obama Urges Court to Vacate AGW Decision. I Smell a Rat (or Two!)

This tactic points in only one direction: allowing an EPA power grab.

by
Marlo Lewis

Bio

August 30, 2010 - 12:00 am

Even if their lawsuit doesn’t go viral, suppressing CO2 emissions as a “public nuisance” would endanger public health and welfare. That’s because CO2 is the inescapable byproduct of the carbon-based fuels that power modern manufacturing, agriculture, and commerce, as the American Farm Bureau Federation explains in an amicus brief on a related case (Comer et al. v. Murphy Oil et al.).

(The biggest public nuisance abroad in the land today is the warmist movement, especially its litigation wing. But I digress.)

The administration’s brief advises the Supreme Court to vacate the appeals court’s decision in Conn. v. AEP and direct the appeals court to consider two questions:

(1) Whether … plaintiffs’ suits should be barred as a matter of prudential standing; and (2) whether in light of multiple actions that EPA has taken since the court of appeals issued its decision, any otherwise cognizable federal common-law claims here have been displaced.

The administration’s argument for barring the suit on “prudential standing” grounds reads exactly like an argument for tossing out the suit as a non-justiciable political question. Consider these excerpts (citations to case law are omitted):

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.

Plaintiffs’ common-law nuisance claims are quintessentially fit for political or regulatory — not judicial — resolution, because they simultaneously implicate many competing interests of almost unimaginably broad categories of both plaintiffs and defendants. On the plaintiffs’ side, the eight States, one city, and three land trusts in these suits are a tiny subset of those who could allege they are injured by carbon dioxide emissions that have contributed or will contribute to global climate change. … [Parties who could claim injury include] nearly all landowners … [as well as] governments, individuals, corporations, and interest groups throughout the Nation and around the world.

Parallel breadth and complexities also characterize the range of potential defendants in such common-law claims, because the categories of those who emit carbon dioxide (and thus contribute to global warming in the way plaintiffs allege) are equally capacious. Plaintiffs’ complaints name a few entities that operate power plants in 20 States. But the electric utility industry alone is far larger, to say nothing of many other sectors in the economy that are responsible for greenhouse gas emissions … including motor vehicles, “industrial processes (such as the production of cement, steel, and aluminum), agriculture, forestry, other land use, and waste management.”

The problem is not simply that many plaintiffs could bring such claims and that many defendants could be sued. Rather, it is that essentially any potential plaintiff could claim to have been injured by any (or all) potential defendants. The medium that transmits the injury to potential plaintiffs is literally the Earth’s entire atmosphere — making it impossible to consider the sort of focused and more geographically limited effects characteristic of traditional nuisance suits targeted at particular nearby sources of water or air pollution. It is cases of the latter sort on which the court of appeals relied as examples of “the federal courts’ masterful handling of complex public nuisance issues.”

Okay, you get the point. The Obama brief does everything except point out the final absurdity: Because everybody directly or indirectly consumes fossil energy, everybody is both victim and perpetrator. The implicit message of the plaintiffs’ suit is not merely sue thy neighbor, but sue yourself!

Why then doesn’t Team Obama draw the obvious conclusion of its own argument and urge the Court to reinstate Judge Preska’s ruling? Why stop at the inherently provisional conclusion that the court of appeals should reassess its decision in light of prudential considerations?

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