Obama Urges Court to Vacate AGW Decision. I Smell a Rat (or Two!)
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.
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?
Maybe the calculation is simply that the Supreme Court would be more likely to act on this advice than to overturn the appeals court's decision.
However, consider what would happen if the Supreme Court were to rule that greenhouse gas regulation is a political question. Industry would no longer 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. Thus, industry and pro-energy lawmakers would no longer view EPA regulation of greenhouse gases as the lesser of two evils. They could then challenge EPA regulation without fear of ending up with something even worse.
The Obama brief plainly presents EPA regulation as a shield from the chaos of CO2 nuisance litigation run amok:
The court of appeals held that plaintiffs' federal common-law actions for public nuisance had not been displaced by the CAA [Clean Air Act] because "EPA does not currently regulate carbon dioxide under the CAA," and does not "regulate such emissions from stationary sources." Those predicates for the court of appeals' analysis are no longer true. In the 11 months since the court issued its decision, EPA has taken several affirmative steps to make carbon dioxide emissions "subject to regulation" under the CAA as of January 2, 2011. Thus, even assuming the court's decision was correct when it was issued, it is now clear, in light of intervening developments, that any federal common-law cause of action against petitioners and TVA for their emissions has been displaced.
The brief continues:
As the court of appeals recognized, federal common law is "subject to the paramount authority of Congress," which means that a "previously available federal common law action" will be "displaced" whenever a "scheme established by Congress addresses the problem." Accordingly, federal common law is displaced when an administrative agency takes regulatory action, under the authority of a comprehensive statutory program, to address the particular issue raised in a putative common-law cause of action.
Of course, the foregoing analysis assumes that Congress intended the CAA to be a statutory scheme for regulating greenhouse gases -- exactly what opponents of EPA's shocking power grab deny. The point, however, is that the Obama administration is attempting to manage rather than eliminate the threat of litigation chaos. The price we must pay for such "protection" -- not spelled out but clear enough from the terms of Team Obama's argument -- is support for (or at least acceptance of) EPA's Court-awarded authority to Kyotoize the economy.
My unsolicited advice to freedom’s friends in Congress and industry is to fight both fronts of this war: (1) Insist that making climate policy is a prerogative of politically accountable elected officials and thus beyond the competence of both judges and EPA bureaucrats; and, (2) challenge EPA's endangerment rule in light of the "absurd results" to which it has led.
NAAQS: A Ticking Time Bomb
Industry types willing to accept EPA regulation as the lesser evil should consider what the U.S. business climate will be like once the agency gets around to establishing national ambient air quality standards (NAAQS) for greenhouse gases.
Some may think EPA would never go to such extremes. Then how come the Obama brief lists CAA Section 108 -- the trigger for an NAAQS rulemaking -- as one of the authorities available to EPA for regulating greenhouse gases? The brief also mentions Section 202 (motor vehicle standards), Section 165 (prevention of significant deterioration preconstruction permitting), Section 111 (new source performance standards), and Title V (operating permits) as applicable CAA authorities. No surprise there. EPA has either issued or is developing rules to regulate greenhouse gases under those provisions. However, sandwiched between the brief's description of Section 202 and Section 111, we find this observation, which comes as a complete surprise:
Section 108 of the CAA also provides EPA with a mechanism for listing pollutants that "endanger public health or welfare" and meet certain other criteria. When an air pollutant is listed, the Act requires States to regulate emissions to prevent pollution from exceeding EPA standards.
If EPA would never issue NAAQS for greenhouse gases, then why mention Section 108 in a brief intended to prove that CAA regulation of greenhouse gases "displaces" federal common-law injury claims? Why not just discuss the authorities everybody knows EPA is currently using or plans to use?
Including NAAQS as a regulatory option in a brief to the Supreme Court is worrisome, especially given the aggressive push warmists are making on this front. The Center for Biological Diversity (CBD), among others, petitioned EPA more than a year ago to establish NAAQS for CO2 at 350 parts per million and for other greenhouse gases at pre-industrial concentrations. Even a global depression lasting several decades would not be enough to bring global CO2 concentrations down to 350 ppm. Yet, under the CAA, states must attain primary (health-based) NAAQS within five or at most 10 years.
Logically, EPA has already satisfied the substantive criteria for listing greenhouse gases as air pollutants under Section 108. NAAQS are pollution concentration standards specifying how many parts per million (or billion) of a pollutant are permissible in the ambient air. EPA's Endangerment Rule (p. 66516) states that, "elevated concentration of greenhouse gases in the atmosphere may reasonably be anticipated to endanger public health and to endanger public welfare of current and future generations." By "elevated concentration," EPA clearly means elevated above pre-industrial levels. Inescapable implication: EPA has a duty under Section 108 to establish NAAQS for greenhouse gases set below current concentrations -- just as CBD and its allies demand.
The only real protection for America's economic future is for Congress to take back what activist judges and bureaucrats have purloined: the authority to decide how -- and, more importantly, whether -- greenhouse gases shall be regulated.
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