Who can force utilities to cut greenhouse gases? Supreme Court to decide.
The Supreme Court hears a case Tuesday about greenhouse gases and global warming. Case could open the way for states and citizen groups to battle the threat of global warming via judicial order.
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The lawsuits say the defendants’ power plants are among the largest emitters of carbon dioxide in the world. The plaintiffs want a judge to order them to cap their greenhouse-gas emissions and then agree to a 10-year schedule to reduce them.Skip to next paragraph
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The potential difficulty of this approach is highlighted in a legal brief submitted by Acting Solicitor General Neal Katyal. The defendants’ power plants aren’t the only source of greenhouse gases contributing to global warming, he said.
“Virtually every person, organization, company, or government across the globe also emits greenhouse gases, and virtually everyone will also sustain climate-change-related injuries,” Mr. Katyal said.
The Obama administration is arguing on the side of the power companies that the lawsuits should be dismissed. Katyal said the EPA’s position on greenhouse-gas regulation has changed dramatically in recent years, with increased federal efforts to address the issue.
“EPA has taken substantial steps to regulate greenhouse-gas emissions under the [Clean Air Act], consistent with other high priority efforts by the executive branch to develop appropriate policies to combat climate change,” he wrote in his brief.
Without specific authorization from Congress, a federal judge lacks the power to adjudicate such generalized grievances and lacks the expertise to fashion an order requiring reduction of carbon-dioxide emissions, the solicitor general said.
Lawyers for the power plants agree. “The judiciary is ill-suited to that kind of inquiry unless and until Congress establishes statutory requirements reflecting … policy judgments,” wrote Peter Keisler in his brief.
“These decisions involve predictive judgments about every sector of the national and international economies and policy tradeoffs that turn on how the public values different potential economic, social, and environmental risks and benefits,” Mr. Keisler said. “They are precisely the kinds of judgments that are reserved for the political branches.”
In her brief on behalf of the states, New York Solicitor General Barbara Underwood said the suits against the power plants can be handled like any other public nuisance claim filed in the courts.
“Public nuisance suits are governed by well-established principles that the courts are fully capable of applying in the specific factual context of climate change,” Ms. Underwood wrote.
She said an individual judge would not have to resolve the worldwide problem of global warming. Rather, the relevant issue would be the feasibility of reducing the power plants’ contribution to the nuisance by reducing carbon-dioxide emissions.