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Lots of Hot Air After Activists Lose Climate Suit

11:41 AM, Jun 23, 2011 • By ADAM J. WHITE
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This week, climate change activists suffered a major loss at the Supreme Court, which unanimously threw out their highly publicized lawsuit against power companies. Although—or perhaps because—the Court's opinion was clear and direct, the losing activists have sought desperately to spin a loss into a win. And the press's lackluster coverage of the decision only has helped obfuscate the Court's decision.

Supreme Court

Supreme Court

In AEP v. Connecticut, the Supreme Court rejected two federal lawsuits filed against four major power companies. The plaintiffs, a combination of eight states, New York City, and three nonprofit groups, alleged that the power companies' emissions were injuring them, and demanded that the courts order each power company "to cap its carbon dioxide emissions and then reduce them by a specified percentage each year for at least a decade."

The plaintiffs' lawsuit was not based on an alleged violation of the Clear Air Act or an EPA regulation or any other law found in the U.S. code. Instead, the plaintiffs fashioned their claims as alleged violations of the "federal common law of public nuisance." In other words, they argued that unwritten, judge-made law entitled them to relief. Of course, no such rule of common law had ever been affirmed by the U.S. courts with respect to global climate change, where no direct line can be drawn between a defendant's specific action and the precise harm suffered by the plaintiff. And so the plaintiffs relied on cases involving, for example, one state's discharge of sewage into a river, which polluted another state, and a copper company's discharge of noxious gas into the air, which harmed trees and crops downwind.

The trial court dismissed the case, but the U.S. Court of Appeals for the Second Circuit reversed that decision, saying that the case could go forward. (The Second Circuit's handling of the case was truly strange: After hearing oral arguments in June 2006, the court held the case in limbo for over three years. It issued its decision only after one of the three judges assigned to the case—Sonia Sotomayor—was appointed to the Supreme Court and thus removed from the case.)

The Supreme Court heard a number of different reasons why the case should be dismissed, and it selected a straightforward one: Even assuming for the sake of argument that there once had been such a thing as the federal common law of nuisance with respect to climate change, that federal common law has since been "displaced" by the Clean Air Act, which (according to the Court's decision four years ago) gives the Environmental Protection Agency power to regulate greenhouse gas emissions. Because Congress had "delegated to EPA the decision whether and how to regulate carbon-dioxide emissions from power plants," that delegation "displaces federal law," leaving no room for federal judges to try to craft national climate change policy on a case-by-case basis.

In short, it was a straightforward win for the power companies. But the resulting press coverage and activist spin fundamentally mischaracterized the case in a number of ways.  

First, some characterized the decision as an endorsement of climate activists’ scientific theories. In Politico, Rep. Ed Markey announced that the Court "has now reaffirmed the underlying science behind" EPA climate regulations. To the National Wildlife Federation's Joe Mendelson, the Court's opinion "recognizes [the] EPA's science…" But no one who actually read the opinion could honestly make those statements: After citing both sides of the scientific debate, the opinion stressed that "[t]he Court, we caution, endorses no particular view of the complicated issues related to carbon-dioxide emissions and climate change."

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