|The Court and Global Warming
The case about global warming scheduled to be argued on Tuesday before
the Supreme Court is a blockbuster. Eight states — from California to
New York, plus New York City — sued six corporations responsible for
one-fourth of the American electric power industry’s emissions of carbon
Rather than seeking money or punishment for the defendants, they seek
what everyone should agree is the polluters’ responsibility: abatement
of their huge, harmful part in causing climate change. The purpose is
not to solve global warming or usurp the government’s role in doing so.
It is, rightly, to get major utilities to curb their greenhouse-gas
emissions before the government acts.
Because there is no federal regulation of this problem in force, it is
fortunate that there is a line of Supreme Court precedents back to 1901
on which the plaintiffs can build their challenge. When this lawsuit
began seven years ago, one of the defendants’ main defenses was that,
because the Clean Air Act and other laws “address” carbon dioxide
emissions, Congress has “legislated on the subject” and pre-empted the
suit. The pre-emption claim was spurious when they made it and remains
Seven years ago, neither Congress nor the Bush administration showed
interest in pushing comprehensive laws or rules to curb these gases.
Since then, the Environmental Protection Agency has found that
greenhouse gases endanger public health as “the primary driver” of
climate change and has regulated vehicle emissions.
But the electric power industry is working to scuttle this regulation,
with the help of the Republican-controlled House. In court, the industry
pushes for letting the E.P.A. regulate. On Capitol Hill, it tries to
torpedo that authority.
For the United States Court of Appeals for the Second Circuit, two Bush appointees (one by the father, the other by the son) held
that the prospect of regulation by the federal government is not enough
to make this lawsuit go away. What the judges noted remains
incontestable today: “E.P.A. does not currently regulate carbon dioxide”
by requiring “control of such emissions” from existing power plants.
The judges reviewed five other major statutes that directly address the
issue of climate change, beginning with the National Climate Program Act
of 1978 a generation ago and running through the Energy Policy Act of
2005 passed while this lawsuit was under way.
They use italics to devastating effect, noting that these laws call for assessments, data collection, forecasts, improvements in understanding
and all manner of other ground-laying efforts, but not one concrete
action “to regulate greenhouse gas emissions in any real way.”
Yet the failure of the federal government to act, which has gone on for
many years, doesn’t mean the plaintiffs must wait until it does. As the
Second Circuit writes, they “may seek their remedies under the federal
common law,” including made by justices. The Supreme Court has upheld a
lawsuit preventing the discharge of sewage that made the Mississippi
River unfit. It has upheld limits of noxious emissions of sulfur from
copper foundries in Tennessee that were destroying Georgia forests.
There are other clear-cut precedents.
The appellate court’s opinion closes by paraphrasing a Supreme Court opinion
from almost 40 years ago. New federal regulation may pre-empt the
federal common law of nuisance, but, until then, federal courts are
empowered to address the public nuisance caused by major, undisputed and
destructive sources of greenhouse gases.
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