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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."

Second, others—including the Natural Resources Defense Council's David Doniger, in the Washington Post—asserted that the Court recognized an EPA "duty" to regulate greenhouse gas emissions. But that claim, too, is specious. To the contrary, the Court stated that the Clean Air Act gives the EPA the discretion to determine "whether"—or not—to regulate greenhouse gases. The Court further explained that the EPA may well decline to issue such regulations, and that its decision would stand so long as it satisfies the generally applicable (and deferential) standards of judicial review for agency decisions.

Third, some suggest that the Supreme Court's decision would not block the refiling of an identical lawsuit against the power companies, if the EPA ultimately fails to regulate greenhouse gases or otherwise "not satisf[y]" environmentalists. This suggestion was raised not by activists, but by the journalists themselves, in the Wall Street Journal and Washington Post. But this characterization, too, is flatly contradicted by the Court's own words. The Court stressed that the presence or absence of future EPA regulations was irrelevant to its rejection of the activists' suit: the suit was blocked by the Clean Air Act, not by EPA regulations administering the Act. "Indeed," the Court explained, "were EPA to decline to regulate carbon-dioxide emissions altogether at the conclusion of its [Clean Air Act] rulemaking, the federal courts would have no warrant to employ the federal common law of nuisance to upset the agency's expert determination [not to regulate the emissions]."  

Finally, some characterized the opinion as a "reaffirmation" of the Court's controversial decision, four years ago in Massachusetts v. EPA, that the Clean Air Act gives the EPA the option to regulate greenhouse gases. The Court did no such thing, because neither the plaintiffs nor the defendants asked the Court to do so. Both sides simply accepted Massachusetts v. EPA as a given fact, and argued their cases from there. Justices Alito and Thomas noted this fact in their separate (if gratuitous) concurring opinion.

But for all the hope activists have attempted to read into the Court's opinion, there does remain one important trap door that Republicans could unwittingly fall through. Because the Court's analysis was premised upon its prior interpretation of the Clean Air Act—i.e., the Act gives EPA the authority to regulate greenhouse gases, and that statutory authority displaces plaintiffs' (hypothetical) federal common law—the Court's reasoning could be unwittingly nullified by Republican amendments to the Clean Air Act.  

That problem is easily solved: If Republicans succeed in amending the Clean Air Act to remove the EPA's jurisdiction over greenhouse gases, they will need to couple that amendment with another provision stressing that Congress's decision to leave greenhouse gases unregulated still is intended to displace any federal common law on the subject. That denial of power, no less than the law’s current grant of power to the EPA, would (in the Court's words) "speak directly to the question at issue," and thus prohibit the activists from refiling their case.

Adam J. White is a lawyer in Washington, D.C. 

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