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Disorder in the Court: Will Trial Lawyers and Activist Judges ‘Legislate’ Climate Policy?

by Marlo Lewis on March 29, 2011

in Features

Tomorrow, the Senate is scheduled to vote on the Inhofe-Upton Energy Tax Prevention Act (S. 482) to overturn EPA’s Endangerment Rule and most of the agency’s other greenhouse gas (GHG) regulations. The bill is based on the constitutional premise that Congress, not an administrative agency with no political accountability to the people, should make the big decisions regarding national policy.

The fact that Congress remains deadlocked on climate and energy policy is a reason for EPA not to act — not an excuse for the agency to substitute its will for that of the people’s representatives.

I am a huge fan of the Inhofe-Upton bill. But even a good thing can be improved. S. 482 should be amended to preempt public nuisance litigation against GHG emitters under federal common law. Indeed, in its current form, S. 482 could actually increase the risk that the Supreme Court will empower trial lawyers and activist judges to ‘legislate’ climate policy. 

To belabor the obvious, trial lawyers and activist judges are even less accountable to the people than is the EPA, which at least depends on Congress for its annual appropriations.

The Supreme Court is currently reviewing State of Connecticut v. American Electric Powera case in which six states, New York City, and three conservation groups are suing five large coal-burning electric utilities for their alleged contribution to climate change-related “injuries.” Plaintiffs claim the utilities’ carbon dioxide (CO2) emissions are a “public nuisance” under federal common law. They seek a remedy whereby the utilities would be required to reduce their CO2 emissions by a “specified percentage each year for at least a decade.” A new Congressional Research Service (CRS) report, Litigation Seeking to Establish Climate Change Impacts as a Common Law Nuisance (March 25, 2011), provides a useful overview of the case and the associated legal issues.

A win for plaintiffs would endanger the economy and further erode our constitutional system of separated powers and democratic accountability.

Plaintiffs 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 lawsuits. If state, municipal, or private parties can sue large utilities for emitting CO2, they can also sue smaller utilities and manufacturers. In principle, they can sue almost anyone. Utilities, after all, only emit CO2 in the process of serving customers who use electricity. People lighting their homes, running their businesses, and using 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.

If plaintiffs win in Connecticut v. AEP, firms large and small could 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. A victory for plaintiffs could destroy for many firms the legal predictability essential to business planning. 

In August of last year, the Obama administration filed a brief on behalf of the utilities, clearly laying out the absurdities of attempting to determine climate policy via common law nuisance litigation. Not only are there no “judicially discoverable and manageable standards” for balancing the public’s  undeniable interest in reliable and affordable energy with the public’s hypothetical interest in climate change mitigation, but the potential pool of plaintiffs and defendants whose interests would be affected literally number in the billions.

Strangely, the Obama brief failed to state the conclusion implied by its argument, namely, that climate policy is a non-justiciable “political question.” Instead, the brief argued that EPA’s ever-growing ensemble of GHG regulations “displaces” the federal common law of nuisance. Implication: All that stands between the U.S. business community and climate litigation chaos is EPA’s newfound career as GHG regulator.

The Court set the stage for EPA’s climate policy initiatives, and very likely wants to protect EPA’s greenhouse agenda from S. 482 and other legislative challenges. The Court may then be tempted to reach a decision blocking CO2 nuisance litigation solely on displacement grounds, so that Congress would arguably be exposing U.S. businesses to an even greater peril by overturning EPA’s policies.

The CRS report alludes to this problem:

Also interesting in the case before the Supreme Court is how EPA’s GHG-related actions under the Clean Air Act since the Second Circuit’s decision in 2009 (and further actions being discussed at the agency) will be seen to affect whether the federal common law of nuisance has been displaced. The Second Circuit explicitly noted this future possibility. Not surprisingly, petitioners-utilities argue that EPA’s actions do require displacement. On the other hand, should any of several bills before the 112th Congress eliminating EPA authority to regulate GHG emissions be enacted, the argument that federal common law has been displaced would be weakened. (Emphasis added).

 None of the foregoing is to suggest that the Senate should not pass S. 482. The point rather is that S. 482 should be amended to ensure that the Court cannot use the prospect of litigation chaos to intimidate opponents of EPA’s power grab. What would an appropriate amendment look like?

S. 228, the Barrasso-Walberg Defending America’s Affordable Energy Act, has a provision that would keep the climate ambulance chasers on ice, allowing Congress to nix EPA’s climate rules without fear of getting something even worse:

ACTIONS AT LAW.—No cause of action, whether based on common law or civil tort (including nuisance) or any other legal or equitable theory, may be brought or maintained, and no liability, money damages, or injunctive relief arising from such an action may be imposed, for— (1) any potential or actual contribution of a greenhouse gas to climate change; or (2) any direct or indirect effect of potential or actual atmospheric concentrations of a greenhouse gas.

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