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

Fighting the extortion strategy from the greenhouse protection racket.

by
Marlo Lewis

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December 11, 2010 - 12:00 am
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Last 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’ CO2 emissions 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 last 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 PJ 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.

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