Is Climate Change A Damned Nuisance?
I have curly hair. More heat and humidity = bad hair days. Thus, from a purely personal perspective, climate change-caused increases in temperature and intensity of storms will be, for me, a nuisance.
Apparently, my perspective on this does not count as much as that of the Supreme Court. Fortunately, the nine justices (well, actually, eight because Sonya Sotomayor recused herself) will be deciding whether climate change actually is a nuisance. Today the high court announced that it will hear American Electric Power v. Connecticut.
In the original suit, a coalition of eight states, local governments and non-profit land trusts sued major power producers alleging that the power producers had created a common-law nuisance by adding 650 million tons of carbon into the atmosphere.
The main issue is one of my perennial favorites in the green regulation arena--federalism. The district court determined that the case could not go forward because the suit raised political questions which were not justiciable by the courts. The Second Circuit reversed, arguing that, while complex, the issues boiled down to basic environmental torts which had been handled by the courts in the past. The Second Circuit decision is available here.
Many Republicans have been trying to restrict the EPA's ability to regulate greenhouse gas emissions pursuant to the Clean Air Act, and Harry Reid has already announced that comprehensive energy legislation, including cap-and-trade is off the table indefinitely.
Thus, If the Supreme Court rules that regulating greenhouse gas emissions is a political question, that question has already been answered. But if the Court decides that carbon emission is a nuisance, and capping of carbon emissions is an available remedy, the politicians will be left with little choice other than to create a compromise on how to cap carbon emissions comprehensively. If they do not, it leaves open the opportunity for copy-cat litigation in every state and municipality across the country, with potentially differing mechanisms for capping greenhouse gas emissions.
The showdown is likely to happen in the spring, and be on the lookout for an 4-4 split, since Justice Sotomayor recused herself.
Shari focuses on energy, environmental and building code policy, representing international companies, non-profits and trade associations in their policy and communications campaigns
