Today the Supreme Court took up the case of American Electric Power Co. v. Connecticut, reviewing a Second Circuit decision finding that states and private parties could sue electricity generators for global warming under the judge-made law of nuisance. To the Second Circuit, this was just a “garden-variety” claim, despite pitting all the world (those affected by warming) against all the world (those of us who breathe) and asking a court to make some unusual judgments—for example, contriving a national energy policy that permits only the “right amount” of carbon dioxide emissions.
For those thinking that those sorts of judgments are not the kind usually made by courts—you’re right. Even Justice Ginsburg was clearly uneasy with the states’ case, explaining: “The relief that you’re seeking, asking a court to set standards for emissions, sounds like the kind of thing that EPA does. I mean, Congress set up the EPA to promulgate standards for emissions, and now the relief you’re seeking seems to me to set up a district judge, who does not have the resources, the expertise, as a kind of super EPA.”
You know you are having a bad day as counsel when you get lectured on separation of powers by Justice Ginsburg. Making matters worse, counsel for the states, New York State Solicitor General Barbara Underwood, had no plausible reply. Though denying that the court would be acting in any sort of regulatory capacity, she also stated that it would need “to decide whether these defendants can take reasonable cost-effective measures that would help to slow the pace of global warming”—a quintessential administrative regulatory activity. The Chief, Alito, Ginsburg, and Kagan each jumped on this inconsistency.
And then there was the whopper. Underwood argued that imposing carbon-dioxide caps on electricity generators somehow wouldn’t cost a dime. This led Scalia to quip to counsel that “‘Implausible’ is the word you’re looking for.”
Far from implausible, it is perhaps even likely that the Court will be unanimous in reversing the Second Circuit—the only question is how, exactly. For three or four of the justices (the Chief, Scalia, Thomas, and Alito), standing may be a barrier to reaching any other issue; if so, there could be a 5-3 or even 4-4 split, with the others reversing on the basis that federal common law offers no remedy or has been displaced by the Clean Air Act and EPA regulations or that the questions presented are political in nature. If there is a 4-4 split, the opinion would bear no precedential weight.
But the foremost exponent of displacement was the Chief, who has worked hard in previous cases to pull the Court together. If he or others of those who might otherwise get stuck on standing simply rely on Massachusetts v. EPA to decide that issue, all eight justices could get behind a narrow opinion based on the Clean Air Act’s supplanting any federal common law remedy that might have existed. That would be a real achievement in a case that threatened discord on the Court.