The Supreme Court, hearing its biggest-ever case on the issue of global warming, spent half of its time Tuesday indulging in a desire to keep the federal courts involved in such cases, and half the time addressing the seeming reality that such a case would simply not be manageable as a lawsuit. The Justices thus looked in two clearly opposite directions as they heard more than 75 minutes of argument in American Electric Power, et al., v. Connecticut, et al. (10-174), a federal common law claim against five operators of electricity-generating plants said to be the nation’s largest producers of earth-heating “greenhouse gases.”
Most of the Court seemed uninterested in suggestions by the utilities and the Justice Department that they simply throw out the case on procedural grounds, instead preferring at least to “take a peek at the merits” — as Justice Anthony M. Kennedy put it — on whether the claims against the emitters had any chance of standing up in court. When the Court turned to the merits, there was not one Justice who suggested how a federal District judge could figure out how to proceed to a decision. In short, this particular lawsuit seemed doomed, with the Court’s biggest task figuring out how to say so without shutting the courthouse door entirely to such claims.
Both the utilities’ lawyer, Peter D. Keisler, and the Acting U.S. Solicitor General, Neal K. Katyal, made clear that — for somewhat different reasons — they wanted the case dismissed on the premise that it simply did not belong in the courts, especially since the U.S. Environmental Protection Agency was beginning to stir itself to take action against climate change. But neither of them seemed to make much headway with that line of argument, as several of the Justices wanted to focus on whether EPA was doing enough, soon enough, to “displace” — but perhaps not for all time — a federal lawsuit based on the common law of “public nuisance.”
A lawyer for the six suing states, New York’s state Solicitor General Barbara D. Underwood, struggled valiantly to describe an entirely manageable lawsuit, stripped down to these particular emitters and narrowed to encompass emission-reduction technology that she insisted already existed, but there was not one Justice commenting, or even nodding, in agreement. “The relief you are seeking,” Justice Ruth Bader Ginsburg told Underwood almost as soon as she had stood up, “sounds like the kind of thing EPA does. Congress told EPA to set the standards [in the Clean Air Act]. You are setting up a District judge as a kind of ‘super EPA.’ ”
Underwood, pressed to cite past court cases that might show this particular lawsuit could work in court, had no close parallels to rely upon. Chief Justice John G. Roberts, Jr., had pressed her to come up with an answer to Solicitor General Katyal’s argument that the Court, in 222 years, “had never heard a case like this before.” Katyal had made that argument as part of his rationale for asking the Court simply to take a pass on deciding this case on the merits, but Kennedy said that line of argument actually went to the merits of whether a federal common law case could go ahead.
It was left to the Court’s three liberal Justices, who might seem naturally to favor a strong judicial attack on climate change, to dismantle Underwood’s argument that the states should be given their day in court to see if they could prove that the utilities were, in fact, heating up the planet and could be made to “abate that nuisance.” Justice Ginsburg suggested that EPA was moving along nicely to deal with the problem, Justice Elena Kagan said what the lawsuit was after was “the paradigmatic work of agencies,” and Justice Stephen G. Breyer said that, if Underwood really wanted to stop greenhouse gases, she should be advocating that a judge in a nuisance case simply impose a $20-a-ton tax on carbon. When Underwood demurred, Breyer said: “If there is no power to do that, why is there power to do what you want?”
The Court’s more conservative Justices, who had seemed most interested when Keisler and Katyal were at the lectern in defending the role of courts in interpreting the common law, pounced eagerly on Underwood when the argument turned to the feasibility of this kind of lawsuit. Justice Antonin Scalia suggested that, if this case could go forward, there could be no reason why states could not sue every cow in the country or every house in the country, to inhibit their contribution to carbon emissions. Justice Samuel A. Alito, Jr., ran through a litany of potential calculations that he suggested a federal judge might have to make to produce a decision in a case like this one and added, rhetorically: “What should a District judge have to decide? What’s reasonable?”
Underwood was reduced near the end of her argument to trying to urge the Court not to take too seriously EPA’s recent promises that it will, in a couple of years, take action against the carbon-emitting utility plants, arguing that the Court should not shut the courthouse door to state nuisance lawsuits just because of “a promise to regulate.”
If the Court were, in the end, to fashion a ruling that scuttled this lawsuit but left the courthouse door at least ajar for some such claims, more modest in scope, drafting such an opinion may be a formidable task. When Justice Kagan asked utilities lawyer Keisler whether there should be “no federal common law for interstate pollution claims,” the lawyer was quite candid: “There would not be very much left. This is a field that is so heavily occupied by statute.”