Monday, June 20, 2011

The Climate Tort is Finished  Review & Outlook 6/21/11

Yesterday's other important Supreme Court decision came in a case that joined the green lobby and the trial bar, if that isn't redundant. The Court unanimously struck down one of the legal left's most destructive theories, and not a moment too soon.

In American Electric Power v. Connecticut, eight states and various other environmental activists sued a group of utilities, claiming that their carbon emissions were a "nuisance" under federal common law and that therefore the courts should set U.S. global warming policy. Yet this is a fundamentally political question, one the Constitution reserves to Congress and the executive, as Justice Ruth Bader Ginsburg wrote for the 8-0 majority.

The Court "remains mindful that it does not have creative power akin to that vested in Congress," Justice Ginsburg observed, in an all-too-rare vindication of legal restraint. "It is altogether fitting that Congress designated an expert agency, here, EPA, as best suited to serve as primary regulator of greenhouse gas emissions. The expert agency is surely better equipped to do the job than individual district judges issuing ad hoc, case-by-case injunctions. Federal judges lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order."

We'd go further and point out that Congress never granted the Environmental Protection Agency the power to regulate CO2. The EPA has merely asserted that power with an assist from the pure policy invention of the Court itself in 2006's 5-4 Mass. v. EPA ruling. Still, the fact that every Justice rejected the new climate tort theory, and that the opinion was delivered by the most liberal Justice, shows how abusive it really was.

The Court dismissed the case under the "political question doctrine," but we wish it had resolved the technical issue of Article III standing, which determines when a plaintiff has a right to sue. The Justices were split four to four, and thus did not rule; Justice Sonia Sotomayor recused herself because she heard the case on the Second Circuit. Yet standing is one of the few restraints on the power of the federal courts, and the litigants didn't have it by a mile here.

Under the traditional legal reading of standing, plaintiffs have to show that the defendants caused their injuries and that the courts can meaningfully redress those injuries. But climate change is a world-wide phenomenon for which the group of utilities barely contributed even under the most aggressive global warmist theories. And even if the courts shut down those plants tomorrow, it would have no effect whatsoever on atmospheric CO2 concentrations.

The climate tort is nonetheless finished, and the Court's decision should make it impossible to advance the same claims in state courts. Anyone who cares about the economy and the Constitutional balance of power can breathe a little easier.

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