Can states sue to force C02 cuts?

For the second time in four years, the U.S. Supreme Court will hear a case involving global warming. The question before those justices now is whether the states can sue utilities to reduce their carbon emissions or whether that is a matter that should be left solely to policymakers. 

 

Utilities are arguing that such environmental matters should be decided those who craft laws -- not those who decide them. Environmentalists, on the other hand, counter that the courts are routinely used to determine whether a “public nuisance” is created under current pollution laws. 

 

Those activists also point out that if the U.S. Environmental Protection Agency should act by requiring true reductions in greenhouse gas emissions, then there would be no need to seek any relief through the court system. When the suit was filed in 2004, there was little chance of a political resolution. Even during the Obama years, the movement has been inconsequential, they say. 

 

For its part, the Obama administration is put in the awkward position of siding with the utilities. It, too, wants elected officials and regulatory bodies to choose how best to reduce carbon emissions. Still, Obama’s team knows that either way, utilities are under more heat to reduce their carbon emissions. 

“This case will primarily affect the role of federal courts in the global warming debate,” says an analysis written by Cornell University’s Law School. “If the states do in fact have the right to sue, many states may choose to use this power to slow or diminish global warming absent comprehensive federal legislation or regulation dealing with the issue. If American Electric wins, attempts to limit carbon emissions must be done through the legislative and executive branches.” 

American Electric Power v. Connecticut is a case whereby several states say that coal-burning utilities are contributing to global warming and should therefore be liable under public nuisance laws. A district court threw out the suit, which was then taken to an appeals court in 2009 that said it could go forward. The case is currently underway at the U.S. Supreme Court. 

Two Sides

The environmental position is that the states have the right of relief under the interstate air and water pollution laws. But this relief cannot be granted through the courts unless the EPA fails to act. And while those regulators have taken steps to reduce the increases in carbon emissions, they have not technically moved to cut those releases. Until that happens, the courts must step in, they argue. 

The green movement makes two crucial points: Court decisions routinely have policy implications and oftentimes policymakers refuse to make hard choices, necessitating action by a neutral arbiter. 

If the utilities win this case, the environmental activists say that energy markets would be permanently distorted by favoring fossil fuels over renewables. AllEarth Renewables says in its friend of the court brief that any exemptions from public nuisance laws grants a de facto “immunity” to utilities from tort law. 

“Nuisance law has addressed a wide range of other interstate air and water pollution problems,” writes the coalition. “There is no principled distinction between those kinds of pollution and the carbon dioxide pollution at issue here.” 

 

But the utilities and their supporters make two key observations: Not only do the states and the environmental community fail to make a case that public nuisance laws have been violated but also that the doctrine of “standing” applies here to ensure that the courts don’t meddle in political affairs. 

 

For starters, they say that the states involved in the suit have been helped by the utilities that provide electricity to their communities. Industry also says that the issue of global warming is complex -- an international phenomenon that cannot be laid to at the feet of domestic utilities providing an essential service. 

 

“It is unconstitutional for courts to make nuanced policy decisions that should be left to the legislature -- and this is true regardless of the science of global warming,” writes Ilya Shapiro of the Cato Institute. If the courts rule against the utilities here, he suggest that the elected officials would abdicate their responsibilities to judges and that it would encourage a slew of related civil cases. 

 

The true question is whether carbon emissions should be regulated. And while the U.S. Supreme Court gave the U.S. EPA that right in 2007, industry has put up roadblocks at every turn. Environmentalists thus contend that if utilities bargained in good faith, they could avert similar legal cases in the future.

 

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