The Supreme Court heard oral arguments today in a high-profile global-warming case: American Electric Power v. Connecticut. At issue is whether and how courts can hold corporate polluters accountable for the planetary climate damage they are causing.
Several states have sued power producers on the basis that they are creating a public nuisance. Instead of being tied to a specific federal statute or regulation, their claim is based on the common law of nuisance, which has been part of our legal system for centuries. (Common law is law developed over time by the courts in the absence of specific legislation or executive rules.) The Second Circuit ruled that the lawsuit could proceed on this theory, and the power companies appealed. However, as the Wall Street Journals reports:
The Supreme Court appeared deeply skeptical Tuesday about allowing states to sue electric utilities to force cuts in greenhouse gas emissions from power plants.
Both conservative and liberal justices questioned whether a federal judge could deal with the complex issue of global warming, a topic they suggested is better left to Congress and the Environmental Protection Agency.
An additional factor arising since the lawsuit began several years ago is a change in the EPA’s stance. When the lawsuit began, the EPA claimed it lacked the authority to regulate greenhouse gases. Now, having been corrected by the Supreme Court, the agency is deciding whether to adopt rules affecting facilities like the ones at issue in this case. Such regulations would, if adopted, trump the common law.
Why let the lawsuit go forward, when "the agency is engaged in it right now?" said Justice Ruth Bader Ginsburg.
The lawyer representing the states acknowledged that the case was before the high court at a "peculiar moment," but said the court should block the lawsuit only if the EPA actually issues regulations. ...
Lawyers for the companies and the administration focused on the enormity of the climate change issue to argue against the lawsuit.
"You have never heard a case like this before," Neal Katyal, the acting U.S. Solicitor General, said. The term global warming, Katyal said, "tells you all you need to know."
The Justices seem likely to rule that the legislative and executive branches should address the issues raised in this case. That will serve the interests of giant corporations with a financial stake in the status quo, who, due to Citizens United, have an undue and growing influence over who populates those branches.