Obama Administration Asks Supreme Court To Eliminate Backstop Against Global Warming

Last year, the Wonk Room reported on the Obama Administration’s bizarre choice to ask the Supreme Court to eliminate an important backstop that would prevent future administrations from undoing the EPA’s slow but ongoing efforts to reduce global warming. As Lyle Denniston explains, there is literally seven centuries of precedent allowing individuals to sue to prevent another from using their property in a way that causes harm. Moreover, ever since a 1907 Supreme Court decision required Tennessee copper companies to reduce emissions that were damaging Georgia farmers’ crops, states have been empowered to sue harmful emitters under a legal theory known as “nuisance.”

Yet when several states sued a group of polluters to discourage them from damaging the entire planet by releasing greenhouse emissions, the Obama Administration not only sided with the polluters, it argued in the Supreme Court today that polluters should effectively be shielded from judicial attempts to rein in global warming:

DOJ, however, makes two claims why nuisance law should not apply here.  Their less troubling argument is that, because EPA has started to regulate greenhouse emissions after President Obama took office, these EPA regulations “displace” federal nuisance law.  Under this line of reasoning, if a future administration were to lift Obama-era regulations protecting against climate change, federal nuisance law would remain as a backstop to prevent emitters from being completely unchecked.

DOJ’s second argument creates a much bigger problem.  Under this argument, the states lack “standing” to assert a federal nuisance claim altogether.  Should this reasoning be adopted by the courts, federal nuisance law would no longer provide a backstop against emissions, and it would no longer serve as a deterrent to prevent conservatives from gutting environmental regulations.

In essence, current law establishes that the courts can be a check on polluters unless the EPA steps up and regulates them itself. The Administration’s first argument is consistent with existing law, and would ensure that the courts could continue to act as a backstop if a future EPA fails to regulate greenhouse gasses.

But the Administration also argued that courts shouldn’t allow states to invoke this backstop in the first place. If the Supreme Court adopts this reasoning, the Earth will lose an important safeguard against an EPA captured by big industry.

Fortunately, the justices seemed much more moved by the Administrations first argument today than by its second argument, but it is nonetheless distressing that DOJ would even raise a legal argument which could undermine much of the Obama Administration’s slow but ongoing work to protect the planet from global warming.