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Supreme Court should reject climate change nuisance suit

The Supreme Court is set to hear arguments in American Electric Power Co., Inc. v. Connecticut, an unprecedented “public nuisance” lawsuit brought against energy companies. The courts are hardly the place to set broad policy on climate change. Even Obama agrees.

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The energy companies – joined by supporters including the Chamber of Commerce, the National Federation of Independent Business, members of Congress, and more than 20 other States – argue that this and similar cases should not be allowed to proceed. Such cases exceed the institutional competence and constitutional authority of the federal judiciary, which has the task of interpreting laws that arise from the political branches’ resolution of policy disputes. Federal judges should not be in the practice of creating energy and environmental policies out of whole cloth, as trial judges confronting these public-nuisance climate change cases in New York, California, and Mississippi have readily concluded in dismissing them.

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Not fit for resolution by judges

American Electric Power Co., Inc. v. Connecticut is not fit for resolution by judges because it lacks what the Supreme Court calls “judicially discoverable and manageable standards.” As the states and their environmental supporters have candidly acknowledged, there is no federal statute or regulation that limits greenhouse gas emissions by these companies. By asking for judicial carbon caps, the plaintiffs are seeking precisely the policy outcome that Congress and the EPA have been unwilling to adopt. Frustrated, state attorneys general have answered calls from activists and professors for what they characterize as “heroic litigation,” because “[d]esperate times call for desperate measures.”

These suits’ political purpose is plain: Connecticut suggests that the case be returned to the trial court and stayed until the EPA “addresses the nuisance.” In other words, unless and until the EPA issues the desired regulations, plaintiffs can hold defendants hostage through litigation that threatens to impose standardless liability for emitting carbon dioxide, something done daily by billions of people and businesses around the world.

By asking federal courts to fashion novel remedies to a policy challenge as controversial as climate change, the plaintiffs push the judiciary beyond what the Supreme Court has called “the proper – and properly limited – role of the courts in a democratic society.” The Obama Administration, in a Justice Department brief on behalf of the TVA agrees, arguing that “Plaintiffs’ common-law nuisance claims are quintessentially fit for political or regulatory – not judicial – resolution....”

In deciding this case, the Supreme Court should explain the limits of its decision in Massachusetts v. EPA and halt the plaintiffs’ unjustified expansion of public-nuisance doctrine. Failure to do so will invite suits against any entity alleged to “contribute to” climate change and ensure American economic policy is increasingly made by judges. As one judge in Massachusetts aptly explained in a different context, the more courts become involved in policymaking, “the more we allow the Legislature to avoid difficult questions, and the more our citizens get accustomed to turning to the courts for solutions rather than to their elected officials.”

Megan L. Brown is a partner at Wiley Rein LLP in Washington, in the firm’s appellate and communications practices. She litigates at the trial and appellate levels on behalf of corporations, trade associations, and individuals, in cases involving complex federal preemption, jurisdiction, administrative law and constitutional issues. Megan has filed an amicus brief in the case on behalf of the Cato Institute.


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