Last week, the Supreme Court tackled one of the country’s most contentious environmental issues, climate change, in AEP v. Connecticut.
Without taking sides in the climate change debate, a unanimous court rejected an attempt by California, New York and six other states to circumvent the authority of Congress to determine national energy policy and to force certain industries to cap their carbon dioxide emissions by judicial fiat.
Written by Clinton-appointee Justice Ruth Bader Ginsburg, the Supreme Court’s decision is not pro-business or anti-business, and it’s surely not pro-environment or anti-environment.
Rather, the case is pro-Constitution. For the Supreme Court, the case was pretty straightforward legally: it should be Congress that decides — for better or for worse — how the United States will respond to concerns about climate change, not unelected judges and juries.
The facts of the case are simple enough. Nearly 10 years ago, six states and New York City, and several environmental interest groups, sued five electric utilities with operations primarily in the Midwest and South in New York City, claiming that their legally permitted emissions were contributing to dangerous global warming and constituted a “public nuisance.”
These states sought an injunction that would require a significant reduction in the operation of the defendants’ coal-fueled electric generating stations.
With a stroke of the pen, the court put an end to the states’ tort claims, hopefully for good. For the court, when Congress enacted the Clean Air Act, Congress spoke on who should decide whether to regulate carbon dioxide because of climate change concerns — and it wasn’t judges and juries in tort cases at the behest of tort lawyers seeking big paydays.
According to the court, in a public nuisance suit involving climate change, the trial court would be called on to determine what level of greenhouse gas emissions are “reasonable” and this would in turn entail a complex balancing of the costs and benefits of reducing greenhouse gas emissions.
The court said that judges and juries, however, are not the proper entities to resolve these complex questions. Expert agencies with power delegated to them by Congress should be the “first decider.”
Many do not believe that regulating greenhouse gases under the Clean Air Act, a statute that was not designed for a global issue like global climate change, represents wise public policy.
A bill to repeal EPA’s authority in this regard passed the House of Representatives but has not been taken up by the Senate.
But whether or not regulation of greenhouse gases under the Clean Air Act represents wise public policy, it remains the law of the land.
For those suggesting the court missed an opportunity to save the world, they miss the most fundamental civics lesson.
Under our Constitution, our elected representatives are charged with making policy. Earth-shattering it’s not, but neither a judge nor a jury should determine energy policy in the United States.
Legally, a trial court in New York should not be permitted to manufacture a national energy policy using tort liability and nuisance law that fundamentally affects how industry in Georgia, Alabama or Florida operate.
Here the Supreme Court got it right.
Douglas A. Henderson and Peter S. Glaser are partners in the Troutman Sanders Environmental Practice Group.
They represented the National Mining Association, the American Farm Bureau and others in AEP v. Connecticut.
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