Greenhouse Protection Racket — An Update

Last week, the Obama Administration filed a brief  on behalf of industry petitioners urging 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 private 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 common-law public nuisance litigation. Because global warming is, well, global, practically anyone on Earth could claim to be a victim. And because companies emit carbon dioxide (CO2) only as a byproduct of providing goods and services (electricity, cars, food, medical care, bites of information, etc.) to people, practically everyone on the planet could be sued as a contributor to the alleged injuries. In the memorable words of South Park’s hilarious global warming episode, Two Days Before The Day After Tomorrow, “We all broke the dam!”

In addition, the Obama brief points out that, “Establishing appropriate levels for the reductions 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.”

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. Rather than seek a decision that would preempt all future CO2 litigation, the brief instead seeks to put one particular CO2 lawsuit on ice.

I smell a rat. The Administration, I suspect, does not want the Court to rule that the political question doctrine precludes public nuisance litigation against CO2-emitters, because it wants the only solid, durable shield against litigation chaos to be the EPA’s “displacement” of common-law injury claims via the agency’s endangerment rule and the ensuing regulatory cascade.

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 litigation to try and spook them into supporting — or at least not aggressively attacking — EPA regulation of greenhouse gases via the Clean Air Act. 

In short, as I discuss in a column this week in Pajamas Media, the Administration needs to keep the prospect of CO2 litigation alive in order to sustain the ”greenhouse protection racket” — the strategy of regulatory extortion — on which warmists increasingly rely to promote their agenda.