Will the Supreme Court Empower Trial Lawyers to ‘Legislate’ Climate Policy?
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.
The Court’s decision in its earlier global warming case, Massachusetts v. EPA, proved to be a font of absurd 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 its amicus 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.
Carbon Offsets = money for Al Gore’s private Gulfstream jet
The klepto-lawyers that own the environmental racket have an invaluable asset in the army of true believers who give their time, labor, and votes so freely, and unquestionably. It would help the cause of truth and justice if prosecutors would start taking these eco-charlatans to task by prosecuting them for their perjuries and perfidies.
Wow!!!
So California (40% emission reductions) and Connecticut could possibly be the two states that are going to single handedly lower carbon emissions, destroy their economies and save the planet all at the same time. What courage, what valour, what morons. Are you Don Quixote wannabes NUTS. Everybody in those two states should abandon ship. Get the hell out, save yourself.
I am sure the rest of the world including China (one new coal fired plant opened every week), India and everybody else is looking on with amusement.
Ah but the pockets of the trial lawyers will once again be lined with golden thread. Ain’t it grand.
Ah, but you’re way to simplistic. The simple act of breathing creates CO2, and Gaia herself produces copious amounts of the dreaded gas. And, the flatulent create yet another greenhouse gas even worse than the dreaded CO2.
Personally, I think we should either allow everyone to sue everyone else on the basis that simply living imposes undue “public nuisance” or that all “climate scientists” and lawyers be deemed “public nuisances”.
By their own logic, all the farmers and anyone who grows plants for a living should sue the people who want to reduce CO2 emissions on the grounds that they are destroying said farmer’s crop growing natural resource.
How does the EPA say schools or hospitals have more privileges than power plants? Who is the most important?
I discerne an agenda here and it may backfire.
There are a lot of molecules. If a lawyer can envision a profit, from nuisance suits, he may sue anyone who messes with any molecule.
Until this is resolved by our betters, I recommend that no one mess with molecules. Everything you ever worked for, may be taken away from you.
Of course, this may collapse our economy, but it is better to be safe.
Is this philosophy the best we can do?
Are we really going to sue ourselves back into caves? It certainly appears as though we will. And for what? A disproven theory that has all the marks of a gigantic hoax.
This insanity has to stop. Taken to its’ illogical conclusion, it won’t be long before someone sues someone else for breathing too much in close proximity to them for a prolonged time.
I think any justice that does not throw this out needs to be taught a lesson in separation of powers. I think the time has come for the legislature to use its impeachment power for a bit more than just criminal activity.
These are a few of my favorite things: plaintiffs’ attorneys; class action lawsuits; and global warming/CO2 “pollution.”
And I thought I could relax after the Senate ceased to be filibuster-proof and the Republicans gained control of the House. Surely Republicans would be able to de-fund any EPA attempts to destroy the economy through CO2 regulation. I failed to recognize the inventive minds of the plaintiffs’ attorneys, despite the fact I watched as they crafted a way to sue tobacco companies for “raising the medical costs of states” (and became multi-multi-millionaires or billionaires in the process, rich enough to buy any politician AND an obscenely opulant yacht).
Asbestos and tobacco recoveries were at least somewhat limited. CO2 will be a gold mine for the foreseeable future and beyond.
For me, what to do until the Court makes its findings. Shall I drink — a lot — or seek out mind-numbing illegal drugs to help me make it through the days?
Will the Supreme Court Empower Trial Lawyers to ‘Legislate’ Climate Policy?
Short answer: YES
We are screwed. Elections have NO MEANING. Without some other action by the citizens, we are going to be starved to death in the dark and the cold because cold, hungry people are much easier to control. Ask Stalin.
I have a modest proposal as to how this can be solved. The utilities can indeed reduce their CO2 content. How? By having electricity free days for all the states that are insisting that the power plants reduce CO2 emissions.
What did you expect? 50 percent of congress are former trial lawyers. The other 50 percent of congress are millionaires, and climbing. So two percent of the American People get one hundred percent representation in congress, the judiciary, and the executive branch, you know, that government of, by, and for the people. And you’re really surprised? I’m shocked, double dealing is going on in government? Shocking!
This issue will not be resolved until some court, somewhere in America, asks why the global temperature data bases have been “adjusted”. All older temperatures were clearly and brazenly decreased and likewise all recent temperatures were raised?
It is such a simple question! It IS the AGW controversy. Nothing will result until this forgotten question is asked in court.
This will become a “political question” in very short order when the lights start going out. Do these activists understand the fire they’re playing with?
Put me on the jury!! PLEASE!! and I’m sure there as many of me as there are of them. I for see hung juries right and left!
I’m sory but I have met my match. I do not beleive any country could be this stupid,in giving one person(a judge) power to decide the fate of millions. Is this how democracy works? The legislators MUST reduce the powers of the Federal Judge. Or else America is DOOMED.
When I served in the military, I swore an oath to preserve, protect and defend the Constitution against all enemies, foreign and domestic. Little did I realize at the time that two of the biggest enemies we face are lawyers and environmentalists. If allowed, they’ll be the death of America if not the whole world.
The congress has for decades, been systematically handing over their constitutional authorities to legislate, to the courts and trial layers. The best solution is to amend the Constitutions Artical I, Section 8 Commerce clause with explict language representing the founders intent for the congress to have the *limited authority* to regulate *duty-free* commerce between the many States, leaving to the States the authroity to regulate commerce. If this isn’t done, the current and corrupted process of the federal government, the congress and the courts/lawyers will progress.
Why is everyone just now realizing what trial lawyers and the legal system is doing? They have been killing our republic and especially our industrial base for 50 years.
It has been a purposeful destruction. Part of the marxist march to destroy America. The legal system has sued compaines out of business or forced them overseas. This is just the latest gambit using EPA and AGW.
We should have reacted with more and vigorous (read between the lines here) when TA sued over a spilled cup of coffee.
And who are the second mose prominent constuency for the Dems in terms of financial support–right, trial lawyers.
With the federal government essentially out of *regulating* commerce there would be *little* for the supreme court, federal courts and lawyers to to use to “transform” America into the socialist progressive objective.
This is why it is so critically important, along with many other reasons, for folks to begin the movement for Amending the Constitutions Article I, Section 8 Commerce Clause to the original intent of the founders….”regulate commerce (*tariff free trade*) between the many States.” This would return to the States, their intended right to govern and regulate commerce. This would also leave the socialists, many departments, agencies and programs in the federal government along with the federal courts and lawyers out-of-business…as intended by the framers of the Constitution.
If the US Supreme Court allows the EPA or any other governmental branch to charge for CO2 emissions. After we all have found and can prove that CO2 emissions do not hurt the earth, but actually help the earth. Then it is time for the Supreme Court Justices to be replace or dropped all together. For the Supreme Court is no longer free to follow the US Constitution but is just another arm of the president making him like a king instead of an elected official! Lets see when they start arresting people who disagree with their views!
lawyers are lawyers. they take care of thier own first,country takes a back seat to graft and racketering.