Climate change Chicken Littles hit a Supreme Court bump in the road

While the Wal-Mart sex discrimination case grabbed all the headlines, of equal or even more significance was the Supreme Court’s rejection Monday of a lawsuit brought by several states seeking to force — under the doctrine of common law relating to a public nuisance, sort of like the public trust doctrine we heard about this past week — a reduction of carbon dioxide emissions from a particular power company’s generating plants.

Ruth Bader Ginsburg

But in an 8-0 opinion in American Electric Power Co. v. Connecticut, written by the court’s most liberal jurist, Ruth Bader Ginsburg, the court said that authority was given by Congress to the Environmental Protection Agency and federal judges have neither the authority nor the expertise to second guess that agency. It overruled a U.S. 2nd Circuit Court of Appeals decision.

The ruling was a welcome retrenchment from the 2007 case of Massachusetts v. EPA in which the court usurped the very authority it now denies lower court judges and told the EPA it must regulate carbon dioxide as a pollutant.

Ginsburg noted that the 2nd Circuit wrongly relied on “a series of this Court’s decisions holding that States may maintain suits to abate air and water pollution produced by other States or by out-of-state industry.” That is precisely the legal authority claimed by the attorney for Kids vs. Global Warming argued before the Nevada State Environmental Commission less than a week ago. It did not fly there either.

Ginsburg dismissed as irrelevant the arguments by both sides as to whether global warming is a fact or whether cutting back emissions from American plants, while China continues to boom, would have any impact.

“We hold that the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants,” she writes. “Massachusetts made plain that emissions of carbon dioxide qualify as air pollution subject to regulation under the Act. And we think it equally plain that the Act ‘speaks directly’ to emissions of carbon dioxide from the defendants’ plants.”

But she couldn’t entirely let go and later added, “EPA’s judgment, we hasten to add, would not escape judicial review. Federal courts, we earlier observed … can review agency action (or a final rule declining to take action) to ensure compliance with the statute Congress enacted.”

Though Justice Samuel Alito concurred in the outcome and Clarence Thomas joined him, he added a one paragraph caveat:

“I concur in the judgment, and I agree with the Court’s displacement analysis on the assumption (which I make for the sake of argument because no party contends otherwise) that the interpretation of the Clean Air Act … adopted by the majority in Massachusetts v. EPA … is correct.”

They questioned whether that earlier ruling was within their power.

Of course, the best solution to this economy killing overregulation would be for Congress to rein in the EPA and take away its power to regulate carbon dioxide emissions. But they can’t even approve a budget. So don’t hold your breath, no matter how much carbon dioxide that would keep out of the atmosphere.

One comment on “Climate change Chicken Littles hit a Supreme Court bump in the road

  1. Steve says:

    Congretional Carbon footprint must be huge considering all the hot air coming out of that building…

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