Supreme Court indicates it will dismiss 6-state global warming lawsuit

In a setback for environmentalists, the Supreme Court signaled Tuesday that it would throw out a huge global warming lawsuit brought by California and five other states that seeks limits on carbon pollution from coal-fired power plants in the South and Midwest.

Sad.  Doubly sad that he Obama administration’s support for the dismissal seemed to have a big impact:

Encouraged by the Obama administration’s top courtroom lawyer, the justices said the problem of regulating greenhouse gases should be left to the Environmental Protection Agency. It is too complex and unwieldy to be handled by a single federal judge acting on a “public nuisance” lawsuit, some of them said.

A defeat for the lawsuit would put more pressure on the administration and the EPA to enforce limits on carbon pollution in the face of strong opposition from congressional Republicans, environmental advocates said.

“The stakes will be very high. The question is whether they can deliver,” said David Doniger, a climate change expert for the Natural Resources Defense Council.

The issue debated before the high court Tuesday was not whether greenhouse gases are causing global climate change, but who should regulate them. The decision involves politics, economics and science, the lawyers said.

“It’s a question of tradeoffs,” said Peter Keisler, a lawyer representing the power producers. “There is no legal principle here to guide the decision” if it were made by a judge.

What did Obama’s top courtroom lawyer say?

Keisler, a former George W. Bush administration official, was joined by acting U.S. Solicitor Gen. Neal Katyal in urging the justices to throw out the lawsuit against the power plants as too sprawling.

“In the 222 years that this court has been sitting, it has never heard a case with so many potential perpetrators and so many potential victims,” Katyal began. Everyone on the planet is an emitter of carbon dioxide, he said, and everyone is a potential victim of global warming. Judges and courts are not suited to handling global problems through a lawsuit, he said.

In their comments and questions, it became clear that the justices “” liberals and conservatives alike “” also were dubious of allowing a single judge to decide on the regulation of greenhouse gases.

This “just sounds to me like what the EPA does,” Justice Ruth Bader Ginsburg told a New York state lawyer who was defending the lawsuit. A judge cannot be “a super EPA” who sets and enforces detailed regulations, she said.

Four years ago, the justices cleared the way for the EPA to regulate greenhouse gases under the Clean Air Act. Since then, the government has adopted stricter standards for new motor vehicles, which take effect next year. But regulation of power plants has stalled. The agency says it will propose new rules in July.

Yes, it should be left to the EPA — but it’s not clear it will be, as the climate zombies are working the graveyard shift to block that.

14 Responses to Supreme Court indicates it will dismiss 6-state global warming lawsuit

  1. sault says:

    I hadn’t thought of this case the way the acting Solicitor Gen. said. Just like Citizen’s United made the Supreme Court some sort of “Super Federal Election Commission”, having a judge with little or any science, economic or technology background deciding climate policy would be a bad idea. In the same vein, having politicians with little knowledge in these same areas interfering with the EPA is a bad idea as well.

    The odds of the EPA’s climate change authority being gutted by congress is a little lower for now, but if the next election gives us an even larger zombie horde of deniers, then the courts might be the last resort to enact some kind of climate policy.

  2. madcitysmitty says:

    Is what Obama’s DOJ did “sad” (opening comment)or “should [it] be left to the EPA(closing comment).” As an attorney and judge I tend to agree that this particular issue should be left to EPA–but I’m open to being educated otherwise.

    [JR: Obama DOJ should have stayed out of this.]

  3. Scrooge says:

    Over all I have to agree with the decision. The feds are the ones that have to step up to the plate. Kinda like the GOPs idea that states can decide their own EPA rules. The feds need to set minimum standards to be met. States can set more stringent standards for themselves but cant lower standards.

  4. “having a judge with little or any science, economic or technology background deciding climate policy would be a bad idea.”

    If the court found for the plaintiffs, the judge would set policy ONLY UNTIL the EPA acted to set policy. The plaintiffs’ argument is that EPA action would preempt the lawsuit’s claim under common law, and that the common law “public nuisance” doctrine is valid only because EPA has not acted.

    The suit was filed when the Bush Administration was saying that the EPA would not act to control global warming.

    It would still be useful to put pressure on the EPA to act. If the suit succeeded, Republicans trying to stop EPA action would change their minds: they would realize that EPA policy is better than court-mandated policy.

  5. Barry says:

    The critical issue is whether plaintiffs have the right under common law to have the courts force the federal government to act if it is not doing so.

    The Supreme Court already ruled that EPA has the authority to regulate climate pollution. But it has never spoken on the more essential question of whether the federal government must regulate interstate climate pollution if plaintiffs can show they are harmed by it.

    Hopefully the Supreme Court decision doesn’t close out this option.

    Best of all would be an opinion that explicitly says this option is still open.

  6. Frida says:

    This case could be the Court’s biggest abdication of moral duty since the 1957 Dredd Scott decision upholding slavery, and it could come on the same legal grounds— that parties who are clearly “damaged” by a wrong nevertheless do not have “standing” to sue. (Whether decided on standing or on the merits, the absurd and cowardly reasoning behind this decision will be: “This case involves more injustice than courts can handle.”)

    As President Buchanan did before Dredd Scott, Obama intervened to try and head off conflict between rapidly diverging States– by siding with a technically outdated, morally bankrupt production system that persists on inertia and ever-growing corruption to prolong its unavoidable collapse.

    It seems neither the first Black president nor today’s cowardly Court will heed the lesson of Dredd Scott: when the future sues the past, pick the future, or be judged by history.

  7. Frida says:

    Sorry, big typo — 1857!

    As the lawyer for the states put it in the best part of her oral arguments (I was there; unfortunately she was terrible)– there is no need (as argued by the defendant polluters) for “a single Federal judge” to come up with a “single standard that would apply to all possible defendants” (that is, all GHG emitters). That absurd statement is like saying judges shouldn’t have power to sentence criminals, because doing so would be unfair unless they came up with a “single sentence” that would be given to all persons committing a certain crime. That’s not how trials work. Trials, whether criminal or in tort (as this one would be), exist to look at each defendant, each plaintiff, each harm, the particular facts of each instance of wrongful conduct — and in a public nuisance suit, the costs and benefits of remediation by each particular defendant — and come up with a fair solution in THAT case. Appeals courts then apply a certain amount of pressure towards standardizing sentencing and verdicts, but overall, not very much. There is no reason that regulating or imposing damages for climate change need be seen as “inherently regulatory” any more than imposing punishment for crime or negligence.

    No reason except cowardice, that is.

  8. Frida says:

    @ Barry — It’s not true that this case is about “whether plaintiffs have the right under common law to have the courts force the federal government to act,” unless by “federal government” you mean the Federal courts. Unlike Mass v. EPA, this suit is not about whether plaintiffs can force EPA to regulate climate pollution– it’s about whether courts can order pollution reductions directly.

  9. dhogaza says:

    Frida – the legal issue bears no resemblance whatsoever to Dred Scott.

    Also, Frida:

    ” It’s not true that this case is about “whether plaintiffs have the right under common law to have the courts force the federal government to act,” unless by “federal government” you mean the Federal courts.”

    Read up on the three branches of the federal government … legislative, executive, and judicial. The federal court system is, indeed, part of the federal government.

  10. Lee says:

    Harvard Law School Professor Laurence Tribe had an op-ed in the Boston Globe as to why he thought the court should dismiss the suit.

    In part he said:
    “As a scholar who belongs to both camps — someone who is neither a doubter when it comes to humanity’s role in exacerbating global warming, nor a shrinking violet when it comes to the judicial role in extending human rights to new frontiers — I might be expected to welcome these climate change lawsuits. Far from it. These suits — including the one the Supreme Court is taking up — represent a profoundly dangerous perversion of the judicial process and would likely retard efforts to grapple with climate change and the threats it poses to human civilization.”

    “Congress, through the Clean Air Act and other measures, has empowered the Environmental Protection Agency to regulate greenhouse gases, and that agency has begun to do so, prodded by a Supreme Court ruling in favor of Massachusetts when the state sued the EPA to compel it to take up the problem. The courts should reject the political and administrative roles that would be thrust upon them by litigants dissatisfied with Congress’s decision to entrust the EPA with this challenging mission — or by those dissatisfied with the efforts of the president and the State Department to engage in the international diplomacy required to cope with an obviously international problem.”

  11. Ben Lieberman says:

    Here’s also what Tribe wrote:

    “There have been similar suits in lower courts. One of the more colorful cases was filed by a native Alaskan village with a population of 400 suing two dozen utility, energy, and oil companies for $400 million in damages to compensate the villagers for the harms resulting from thinning sea ice that they say was caused by global warming. Another was filed by owners of land on the Gulf coast suing energy companies whose carbon emissions the owners say contributed to climate change that made Hurricane Katrina more intense and damaging than it would otherwise have been.”

    So apparently there are groups that are going to face particular harm, but we’re supposed to also believe that it is impossible to identify particular groups who have reason to claim damages.

  12. Mulga Mumblebrain says:

    The courts and the ‘legal process’ in capitalist economies are as unjust, in my opinion, and as biased towards the elites and against the rest as any other institution. In this country access to the legal system depends almost entirely, not on the ‘justice’ of your case, but, like everything else, on your ability to pay. We once had a system of ‘legal aid’, but that has been gutted under various Rightwing regimes, to raise money for tax cuts for the rich. There was also once a system of ‘environmental defenders’ who could take environmental matters to court, but the extreme Right, fanatically denialist, Howard regime gutted that, too.
    Moreover the ‘legal system’ is adversarial, so it isn’t interested in finding the truth, but in creating ‘winners’ and ‘losers’. The judges, lawyers and other legal practitioners are overwhelmingly drawn from elite circles, go to elite schools, can afford the crippling student fees to study law, and nakedly reflect their own ideology in their ‘judgments’. The former ‘Liberal’ Party regime in NSW, created a ‘Land and Environment Court’ some years ago, to adjudicate environmental conflicts over ‘development’ (ie destruction). Instead of an advance it proved an utter disaster for the environment, as it was stacked with ‘judges’ who almost invariably came down on the side of the developers.
    Furthermore, while the courts are out of bounds for all but the wealthy, even when other voices can reach the legal Wonderland, they are often unceremoniously told to ‘piss-off’ by the now frequently abused tactic of denying them ‘standing’. This is arbitrarily and capriciously determined, and monetary interest always gives you ‘standing’ but merely having your life ruined by the depredations of business is summarily dismissed. As well rich kleptocrats increasingly use the courts to launch SLAPPS against activists, that intimidate, threaten impoverishment, even the loss of homes etc, and tie up the victims in court for years, all with the fullest acquiescence of the ‘justice’ system. And, naturally, as this dreadful system of entrenched privilege and injustice works to deepen elite rule and control and intimidate the fractious and disobedient, we never cease to hear denunciations of China or some other designated enemy, as not possessing ‘the rule of law’, an hypocrisy and humbug almost beyond parody.

  13. Tom Bennion says:

    A similar situation played out in the New Zealand courts in 2002 when two proposed thermal power stations were challenged over their CO2 emissions.

    Our specialist environment court fully accepted that global warming was a major concern and that emissions from each plant were a contribution that it could and should consider. But it decided that mitigation was too complex to apply on a station by station basis and better left to a forthcoming government policy.

    That policy 1) never eventuated due to a change of government at the next election 2) eventually arrived years later as an emissions trading scheme which is giving huge taxpayer subsidies to large emitters (billions of dollars over several decades).

    With that experience, I think that there is a good argument that the courts do their job and protect the environment / apply the common law unless and until the legislature clearly steps up. However, looking worldwide, its depressing how the courts have been unable or unwilling to apply and adapt common law principles to meet this huge threat to our well being. There seems to be a willingness to develop the common law in commercial areas particularly, but not here.

    To see how an all-gases, all-sectors emissions scheme can go badly wrong see:


  14. Leland Palmer says:

    Oh, how sad.

    Yes, let’s kick it back into a more corruptible institution, like Congress.

    How sad.

    So many reasons to be tied in knots, so little time. :(