High court offers hope for sense in warming lawsuits

Bob Tippee

Arguments in the first lawsuit involving climate change to reach the US Supreme Court provided incomplete hope that common sense will prevail.

In several “public nuisance” actions, plaintiffs hurt by weather disaster seek damages from large emitters of greenhouse gases claiming that the emissions caused global warming and that the warming aggravated their grief.

Justices hearing arguments in American Electric Power v. Connecticut on Apr. 19 hinted strongly that they see problems with this approach.

Addressing New York Solicitor-General Barbara Underwood, who represented six states suing a group of power companies, conservative Chief Justice John G. Roberts Jr. said: “Across the economy, the whole problem of dealing with global warming is that there are costs and benefits on both sides, and you have to determine how much you want to readjust the world economy to address global warming, and I think that’s a pretty big burden to post—to impose on a district court judge.”

He might have added that allowing a judge to make such a determination would confer enormous power.

Similar reluctance to regulate GHG emissions via lawsuit came from the liberal side of the judicial spectrum.

Underwood had barely begun her argument when Justice Ruth Bader Ginsburg interrupted with this: “The relief that you’re seeking, asking a court to set standards for emissions, sounds like the kind of thing that [the Environmental Protection Agency] does. I mean, Congress set up the EPA to promulgate standards for emissions, and now what—the relief you’re seeking seems to me to set up a district judge, who does not have the resources, the expertise, as a kind of super-EPA.”

Obviously, the justices saw problems with bringing GHG regulation into the judicial system. But they dedicated much of their 75 min session to questions of jurisdiction and the stage at which EPA regulation might “displace” judicial action.

They thus offered little reason for anyone to think they’ll dismiss the case for lack of merit.

Oh, well. One can always hope.

(Online Apr. 22, 2011; author’s e-mail: bobt@ogjonline.com)

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