Justice Department asks Supreme Court to vacate environmental victory against greenhouse gas emitters

Another day, another in a long line of mesmerizingly message-muddying moves by the Obama administration on the environment.As with the decision to embrace offshore drilling, we’ll no doubt eventually learn that this decision — which lies somewhere on the scale between between unproductive and counter-productive — was made without serious input from those in the administration who represent science or the environment.I had applauded the original decision (see Federal court says states may sue utilities over GHGs. NY AG Cuomo: “This is a game-changing decision for New York and other states, reaffirming our right to take direct action against global warming pollution from power plants”).

I couldn’t find anyone who thinks this moves makes much sense. NRDC’s David Donger told the WSJ, “We are appalled.”But I could find someone who can explain what team Obama did and why it doesn’t make much sense — CAP’s Ian Millhiser, who received a J.D., magna cum laude, from Duke University. He clerked for Judge Eric L. Clay of the U.S. Court of Appeals for the Sixth Circuit. What follows is a Wonk Room cross-post.Yesterday, the Solicitor General’s office filed a brief asking the Supreme Court to vacate a victory against several polluters, including a federally-owned corporation:

The Department of Justice brief, filed with the Supreme Court this week, says the Environmental Protection Agency is already on the job, and doesn’t need help from private plaintiffs.

“EPA has already begun taking actions to address carbon-dioxide emissions,” a brief filed by Acting Solicitor General Neal Katyal says. “That regulatory approach is preferable to what would result if multiple district courts “” acting without the benefit of even the most basic statutory guidance “” could use common-law nuisance claims to sit as arbiters of scientific and technology-related disputes and de facto regulators of power plants and other sources of pollution.”

The administration’s brief was filed in connection with litigation pitting the state of Connecticut and seven other states as well as New York City against a group of large coal-burning utilities. The suit contends the utilities are creating a “public nuisance’” through their greenhouse-gas emissions and seeks to force them to cut their emissions. The utilities, including American Electric Power Corp., countered that the issue was a political, not a judicial, matter and that the states didn’t have a right to sue, among other arguments.

Unsurprisingly, environmentalists are outraged by DOJ’s brief, and their outrage in many ways harkens back to the controversy over a previous brief defending the egregious Defense of Marriage Act.


Generally speaking, DOJ has a duty to defend lawsuits filed against the federal government, and several environmental attorneys that I spoke with agreed that DOJ should not be faulted for filing a brief defending against a lawsuit where a federal entity is a defendant. As was the case with DOMA, however, DOJ should not be required to make dangerous or offensive arguments, and DOJ’s brief in the environmental litigation advances an argument that could seriously undermine environmental protection the next time a conservative president is elected.

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.” So the case against greenhouse gas emitters should be a slam dunk, since unchecked greenhouse emissions will cause devastating harm throughout the world.

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.

One additional wrinkle presented by this case is the possibility it could be heard by a panel of justices who have largely pushed a knee-jerk pro-corporate agenda. Justice Sotomayor heard oral arguments in this case while she sat on the Second Circuit, although she was promoted to the Supreme Court before the final decision came down, so she is likely to recuse from further involvement in the case. Additionally, if Justice Kagan had any involvement with the case while she was Solicitor General she would recuse as well. In other words, the future of environmental law could rest in the hands of the Court’s four most conservative members: Roberts, Scalia, Thomas and Alito.


Perhaps this is why DOJ offered the standing argument to the Court-as a way to prevent an ideological four-justice majority from doing something even more damaging while they have a chance. Even so, this standing argument has troubling implications for the future if it is ever adopted by the courts.

— Ian Millhiser