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Supreme Court wary of empowering judges to order greenhouse gas cuts

A lawsuit asking a federal judge to order big power companies to cut greenhouse gases, because the emissions are a public nuisance, got a skeptical reception Tuesday at the Supreme Court.

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“Something that is imminent may never happen,” Underwood said. “The case is here now, and there is no federal statute or regulation that currently regulates the emission of greenhouse gases by existing, unmodified power plants.”

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She noted that each of the states in the coalition has a long-standing right to use the courts to protect its land and citizens from pollution from other states. The suing states are Connecticut, California, Iowa, New York, Rhode Island, and Vermont.

How would a district judge deal with the tradeoffs? asked Justice Samuel Alito. A decision capping emissions might involve increased costs of electricity, cause jobs to be lost in a region, and perhaps deprive some residents of the ability to pay for air conditioning in the summer. How would a judge decide what is reasonable? he asked.

“We’ve alleged that this can be done without increasing the cost to consumers,” Underwood said. “That may seem … that …,” she paused, searching for the right word.

“ ‘Implausible’ is the word you are looking for,” Justice Antonin Scalia interjected. The courtroom erupted in laughter.

Justice Stephen Breyer asked Underwood whether a federal judge has the authority to impose a tax on the discharge of excessive levels of carbon dioxide.

“I don’t think so,” Underwood replied.

So how does the judge have the authority to order a reduction in emissions when that reduction will likely cause an increase in the price of electricity? Justice Breyer asked.

“It is up to the defendant to decide how to do it,” she said.

Peter Keisler, representing the power companies, told the court that there is a reason global warming is a contentious, difficult issue in international negotiations, at the EPA, and in the halls of Congress. It requires policymakers to make difficult choices to balance environmental risks and benefits against economic benefits and costs for remedies that could be transformative.

“The problem with courts attempting to replicate what is going on in those venues is not simply that the matter is complex,” he said, “but there is no legal principle here to guide [a judge’s] decision.”

He urged the court to dismiss the case.

US Acting Solicitor General Neal Katyal also argued that the case should be dismissed. “This court has never had a case of this scale and scope,” he said. “When a problem is of this magnitude, everyone is a potential polluter, everyone is a potential victim.”

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