On April 19, the Supreme Court will hear argument in American Electric Power Co., Inc. v. Connecticut, an unprecedented “public nuisance” lawsuit brought against several of the nation’s largest coal-fired utilities that allegedly contribute to global warming. The dispute is part of a fundamental debate over whether to combat climate change with government policies or lawsuits.
The case has the attention of business and environmental interests – and should concern the broader public – because the plaintiffs ask judges, rather than elected officials or executive branch appointees, to set economic, energy, and environmental policy.
American Electric Power Co., Inc. v. Connecticut arrived at the Supreme Court last year after the US Court of Appeals for the Second Circuit allowed a coalition of eight states, environmental groups, and New York City to proceed with a lawsuit attempting to force American Electric Power Co. Inc., Duke Energy Corp., Southern Co., Xcel Energy Inc., and the Tennessee Valley Authority to reduce their greenhouse gas emissions.
A novel and aggressive case
This case is novel, and far more aggressive and disruptive than the global warming case the Court previously permitted. In a 2007 decision, Massachusetts v. EPA, a closely divided Court agreed with 12 states and several cities that the Environmental Protection Agency has authority to regulate carbon dioxide as a pollutant under the Clean Air Act. Though that case dealt with a narrow claim to enforce a federal statute, the Court’s decision emboldened what had already become a cottage industry of lawsuits designed to slow global warming by asking federal courts to enact what interest groups have been unable to secure through the democratic process: carbon caps and other limits on the way energy is produced in this country.
Under the guise of “public nuisance,” the plaintiffs in these suits seek to impose enormous damages and binding emissions caps on energy companies. The plaintiffs have acknowledged that their goal is a veritable sea change in the way energy is produced, sold, and used in this country. Incredibly, they assert that these companies can make major changes to lower emissions – such as the adoption of wind and solar alternatives – “without significantly increasing the cost of electricity.” But never before has the “public nuisance” doctrine been used to set national economic and energy policy. While litigation may be therapeutic for those frustrated by political inaction, this case is at odds with this country’s legal tradition.
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.
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.