Court Shuts Down Global Warming Lawsuit

Posted from America's Future
Court Monitor

Posted 11/10/2011

The U.S. Supreme Court slammed the door on an attempt by liberals to obtain by court order what they cannot persuade Congress to pass: rationing of energy production based on the unproven theory of man-made global warming. American Electric Power Co. v. Connecticut, 180 L. Ed. 2d 435 (2011). This 8-0 decision against global warming alarmism was a stunning victory in many ways.
The lawsuit began in 2004 when the States of California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont, and Wisconsin, along with New York City and some private land trusts, sued the top five emitters of carbon dioxide in the United States. By the time this case ended on June 20, 2011, New Jersey and Wisconsin had dropped out, probably due to conservative gubernatorial victories in those states.
Liberals often try to advance their agenda through the courts, and global warming is no exception. The plaintiffs insisted that emissions by the power plants were somehow causing global warming. They alleged that the emissions "created a 'substantial and unreasonable interference with public rights,' in violation of the federal common law of interstate nuisance, or, in the alternative, of state tort law."
Yet seven years after the lawsuit began, the weather often seems cooler, and certainly has not dangerously warmed as liberals predicted. Perhaps that obvious fact was not lost on the Justices, who wrote that "t]he Court, we caution, endorses no particular view of the complicated issues related to carbon-dioxide emissions and climate change."
The unanimous Court opinion was surprisingly written by perhaps its most liberal Justice, Ruth Bader Ginsburg, holding that congressional delegation of regulatory powers to the EPA through the Clean Air Act precludes lawsuits to regulate carbon dioxide by court order. "The critical point is that Congress delegated to EPA the decision whether and how to regulate carbon dioxide emissions from power plants; the delegation displaces federal common law."
The Court went further and held that even if the EPA does not try to limit carbon-dioxide emissions, then courts should still not entertain lawsuits to force reductions. "Indeed, were EPA to decline to regulate carbon-dioxide emissions altogether . . . the federal courts would have no warrant to employ the federal common law of nuisance to upset the agency's expert determination."
Better still was how four of the eight Justices felt there was not even jurisdiction in federal court for this lawsuit in the first place, and that it should have been dismissed outright on that basis. These Justices continued to adhere to the dissenting opinion in Massachusetts v. EPA, 549 U.S. 497 (2007). Two of the Justices, Alito and Thomas, went even further and expressly cast doubt on whether "the interpretation of the Clean Air Act, 42 U.S.C. ยง 7401 et seq., adopted by the majority in Massachusetts v. EPA . . . , is correct."
The result of this litigation does nothing to prevent the EPA from regulating carbon dioxide emissions, but it does shut down attempts to regulate them by court order.