Can polluters be sued for contributing to global warming? From the initial reactions of the Justices, it seems that the answer will be "no." Your move, EPA.
This morning, the Supreme Court heard oral arguments in what is quite possibly the biggest global warming-related case in the Court's history. (The famous Massachusetts vs. EPA case of 2007 is the only other one that comes close.) The case—American Electric Power Co. vs. Connecticut—essentially pits six states against five major electricity utilities. The states claim that the utilities, which together contribute about 10 percent of the nation's greenhouse gas emissions, are creating a "public nuisance" by endangering public health and the environment. This common-law "public nuisance" argument is a common way of raising environmental cases through the courts. Kate Sheppard's description of the case yesterday is a great overview.
But if you want the short version, as SCOTUSblog puts it in "plain English," the case will determine "Whether federal law allows states and private parties to sue utilities for contributing to global warming."
So can polluters be sued for contributing to global warming?
From the initial reactions of the Justices, it seems that the answer will be "no." As Justice Ruth Bader Ginsburg told a lawyer for the suing states:
The relief you are seeking sounds like the kind of thing EPA does. Congress told EPA to set the standards [in the Clean Air Act]. You are setting up a District judge as a kind of ‘super EPA.’\n
In fact, due to the Massachusetts vs. the EPA decision of 2007, that agency does have the authority to regulate greenhouse gases, if it can prove that they "endanger" public health. That endangerment finding was issued in 2009, and the agency is slowly stirring into regulatory action. (Of course, many in Congress are fighting to strip the EPA of that court-ordered and science-mandated authority to regulate greenhouse gases.)
The takeaway message of the Justices seemed to be something like: We gave the EPA the authority to deal with this already. It's going to be too complicated to ask every federal judge to determine whether a polluter is a big enough "nuisance" to be liable.
So this "last resort" lawsuit is likely to get bounced out of the Supreme Court, and the EPA will stand alone, once again, as the only governmental body with any authority to actually do anything at all about climate change. Thus far, the agency has punted on any plans or protocol for true regulation, and it only seems weaker after the budget battle. It's high time that the EPA flex its authoritative muscle. Even the conservative Justices in the Supreme Court called for it today.