Greenhouse Gas and the Courts

Despite the seethe of fringe scientists and conservative politicians, it remains a fact that greenhouse gases produced by mankind are among the main contributors to global warming.

The week before last, the Supreme Court considered one such way that emissions could be controlled, that’s through a huge and ungainly lawsuit filed by California and five other states against five different power firms as well as the Tennessee Valley Authority. A number of judges conveyed skepticism regarding the suit however should the court reject it there still won’t be opportunities for subsiding greenhouse gases.

While the lawyers and judges batted abstruse legal terms, the salient arguments regarding whether states had a right to sue and what the role of the courts should be in reducing emissions. One dilemma the states are faced with is the grounding of their suit not in the Clean Air Act but in the common-law idea that the courts should intercede to address the “public nuisance” made by the defendants’ emissions. The lawyer of the power companies mentioned — and the justices agreed —the court’s authority in the case is displaced by the Environmental Protection Agency.

A related weakness of the case is that the lawsuit would make the courts the regulator of first resort. As Justice Ruth Bader Ginsburg put it, the states would “set up a district judge, who does not have the resources, the expertise, as a kind of super EPA.”

The case is different from a 2007 decision where the court ruled the EPA had the authority from Congress to control carbon dioxide and other greenhouse gases. In that case, regarding emissions from cars, the ruling was anchored to a statute and the court’s role was to interpret it. The finding that the EPA could regulate greenhouse gases has had matter-of-fact consequences: The Obama administration commenced the rule-making process for such regulation.

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