Air Date: Week of April 22, 2011

A dispute over whether states can sue big industrial global warming polluters has reached the Supreme Court. The justices seem reluctant to agree that federal courts can order companies to cut emissions when the EPA is already regulating them. But Living on Earth's Washington correspondent Mitra Taj reports the justices might not want federal courts to be totally barred from climate change claims in the future.

Transcript

GELLERMAN: Climate change has been to court before. It's the subject of more than 200 legal cases across the country - but so far, only two disputes have made their way to the U.S. Supreme Court. The first time, back in 2007, the high court ruled the EPA has the authority to regulate greenhouse gases. Now the justices are poised to make another landmark decision: whether states can force utilities to reduce their climate-changing emissions. Living on Earth's Mitra Taj reports.

TAJ: The states suing major power companies say they’re already suffering the harmful impacts of climate change and federal courts should force the country’s biggest polluters to clean up.

But that argument met considerable skepticism when it reached the Supreme Court - and not just from conservative justices like Antonin Scalia, who questioned whether people exhaling carbon dioxide might also be sued. The liberal side of the bench seemed unconvinced as well.

Justice Elena Kagan suggested the lawsuit has no precedent. Justice Ruth Bader Ginsburg asked: couldn’t this turn a federal judge into a kind of “super EPA”? Questions like that backed up arguments made by Peter Keisler, an attorney defending the electric utilities.

KEISLER: Our position is that these issues are fundamentally important policy questions that have to be decided through the democratic process.

TAJ: Keisler says a lot has happened since the suit was first filed in 2004. During the Bush administration, the federal government wasn’t doing anything to cut greenhouse gas emissions. But now, thanks to the 2007 Supreme Court ruling that gave the EPA the authority to address climate change, the executive branch has begun to act. And that, Keisler says, means the courts can’t.

KEISLER: You know that EPA and Congress both have weighed in on this area - Congress in the Clean Air Act, and EPA in implementing the Clean Air Act - does it make sense to set up a parallel process in which courts would be asked to consider through tort litigation all the same questions that Congress and the EPA are wrestling with at the same time?

TAJ: But the EPA so far is only regulating greenhouse gas emissions from new power plants. Rules for the dirtier and aging coal-fired power plants featured in the lawsuit aren’t expected until next year - and that’s if they come at all. Some members of Congress have vowed to revoke the EPA’s climate authority.

The states and environmental groups want a backup plan in case Congress and the administration balk. They argued in court that the promise of federal regulation isn’t enough to get the courts off the hook. Lisa Heinzerling, a law professor at Georgetown University, says the issue at the heart of the case is whether federal courts can handle climate change claims at all.

HEINZERLING: The kind of underlying idea there is this is a problem that's too big and too complicated, too new, to be dealt with through law - and I find that premise scandalous, actually.

TAJ: Before returning to teaching last fall, Heinzerling worked for the EPA, helping design policies to cut greenhouse gas emissions. The effort there is ongoing but this climate case puts the Obama administration in an awkward position. One of the companies being sued is owned by the federal government, and the administration has had to come to the defense of the country’s biggest polluters, even as it writes rules forcing them to cut emissions.

The Solicitor General, speaking for the administration, told the Justices that the global nature of global warming makes it suitable for the EPA, but too unwieldy for the courts. But Heinzerling says there’s no reason all three branches of government can’t help shape solutions.

HEINZERLING: Many, many people think that climate change is the most important environmental issue we face, maybe the most important issue we face, period. And the notion that this is something that cannot be resolved through law is, I think, a deeply dangerous proposition.

TAJ: Together, the five companies are responsible for 10 percent of the country’s greenhouse gas emissions, but legal experts sympathetic to the industry’s case think it's dangerous to allow courts to weigh in. Jon Massey is an attorney and a former Supreme Court law clerk.

MASSEY: There is a real risk here that if courts get involved, they could make the problem worse. So one thing a political branch can do is manage tradeoffs and consider the whole problem. And one thing a court can't do is look at the whole problem, because a court can only decide the case before it.

TAJ: That argument came up in court, and Matthew Levine - the assistant attorney general of Connecticut, one of the states bringing the lawsuit - said it’s nothing new.

LEVINE: That's always been the cry of industry whenever there's any threat of litigation or regulation, but that's just not the case. We're asking for reasonable, cost-effective measures that they can take to reduce their CO2 emissions.

TAJ: If the court does side with utility companies, it might still rule in a way that leaves the door open for federal climate change suits in the future. Almost all of the justices seem skeptical of the industry’s claims that climate change doesn’t fall under the jurisdiction of federal courts. If not federal courts, they said, then the cases would be left to state courts. The industry lawyer responded he’s confident power companies can defend themselves there. But law professor Lisa Heinzerling says: be careful what you wish for.

HEINZERLING: If the court reaches that kind of result, the interesting question is: would the people who have been fighting so vociferously against these claims in federal court - are they really going to prefer 50 different states handling these kinds of claims?

TAJ: The Supreme Court will render a decision this summer. For Living On Earth, I’m Mitra Taj in Washington.

 

Links

Read a transcript of the oral arguments before the court here.

For the case's briefs, click here.

Click here for a state-by-state assessment of the costs of climate change.