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EARTH WEEK

See You in Court

The fight over climate-change policy may move to the judicial branch.

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Not so kingly now: Coal is facing a major court challenge.(SAUL LOEB/AFP/Getty Images)

The Supreme Court on Tuesday takes up its only environmental case this session: a clash between states and the nation’s five biggest power companies that could shift the battle over climate-change policy from Congress to the courts. The justices’ decision in Connecticut v. American Electric Power will determine whether states and private parties can take power plants and other polluters to federal court for contributing to global warming, and whether judges can then force the polluters to cut their greenhouse-gas emissions.

If the justices rule in favor of the six states, New York City, and the three conservation groups that have brought the suit, federal courts will assume a far larger role in action on climate change. Judges would hold sway over the emissions—and profits—of major power plants, oil refineries, and factories. Attempting to deal with climate change through individual court battles would be messy, legally fraught, and much less effective than through comprehensive legislation. But environmentalists see this effort as their last resort in a fight they are losing.

 

Efforts in Congress to enact a broad climate-change law, based on a cap-and-trade system or some other mechanism, have failed repeatedly. With Republicans controlling the House, the chance that this will change before 2012 is nil. In the absence of legislation, the Obama administration has used its executive authority to begin regulating some fossil-fuel pollution. But that authority is under attack on multiple fronts, as Republicans push bills in Congress and polluters pursue cases in the courts to gut the rules. Taking climate battles to the courts is “a backstop to a backstop,” says David Doniger, policy director at the Natural Resources Defense Council.

The case raises three main points of law. The first and foremost is a constitutional question: Is it appropriate for the judicial branch to rule on the issue of climate change, or is the subject so political that only Congress and the executive branch should have jurisdiction? If the justices decide that the courts should not be ruling in this kind of dispute, that is that. But even if the plaintiffs retain the right to go to court, they will have to make the case for how they intend to proceed.

The states and green groups aim to sue carbon-emitting power plants as a “public nuisance.” This represents a change of approach. For decades, states and private parties have successfully sued polluters for spewing noxious substances into the air and water that cause direct and identifiable harm. Court decisions have forced action on sulfur dioxide, which causes localized acid rain; raw sewage, which harms people and the environment downstream; and other pollutants with direct or local effects.

 

Yet going after polluters for emitting carbon dioxide and other greenhouse gases raises new issues. Scientists have proven that carbon dioxide contributes to climate change and that climate change causes damage—from rising sea levels to melting snowpacks. But CO2 is a global phenomenon. It is impossible to prove that emissions from a specific power plant have directly caused rising water levels or coastal erosion in a neighboring community in the same way that localized pollutants can be directly tied to health or environmental problems. So, the high court must decide whether entities that contribute to climate change qualify under the less specific rubric of public nuisance.

If attorneys for the states persuade the justices on the constitutional point, and then on the public-nuisance question, they will still have to establish the plaintiffs’ right to sue for caps on carbon even as the Environmental Protection Agency has set in motion a program to begin regulating these emissions. They will argue that although administrative aspects of that program are under way, the government has not yet begun to regulate the warming pollutants, and that Congress or legal challenges might weaken the rules or stop them in their tracks.

Meanwhile, there is yet another twist. Although President Obama has emphasized his desire to fight climate change, his administration is actually a defendant in the case—on the side, that is, of the polluting power plants. The federal government owns an electric utility, the Tennessee Valley Authority, which is named in the suit. Awkwardly, attorneys for the administration are trying to stand apart from the main arguments of the other polluters. They are not asserting that the courts, as a matter of law, should refuse to get involved with climate-change policy, but rather that there is no need in this instance for them to do so, because EPA has the matter in hand.

This article appears in the April 16, 2011 edition of National Journal Magazine.

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