26 August 2010

Obama Administration: The Courts are the Wrong Place for Climate Policy

[UPDATE 8/27: Real constitutional law experts discuss this here (Jonathan H. Adler) and here (Jonathan Zasloff) (read comments on the latter for their exchange), offering starkly different perspectives.]

The Obama Administration has issued a remarkable brief siding with energy companies over whether they should be liable for the effects of their greenhouse gases as a "public nuisance."  The arguments in the brief, should they come to be accepted, would appear to put an end to effort to use of the US judicial system to force regulations of greenhouse gas emissions.

Greenwire reports that the administration's postion has come as a shock to some environmental advocates:
Matt Pawa, an attorney representing plaintiffs in the case, said he and his colleagues expected the White House to stay out of the matter. During a meeting with more than 30 administration lawyers at the solicitor general's office on June 24, it seemed they had "a lot of friends in the room," he said.

"We feel stabbed in the back," Pawa said. "This was really a dastardly move by an administration that said it was a friend of the environment. With friends like this, who needs enemies?"

Top attorneys at environmental advocacy groups are buzzing about the brief, sources say. Some feel betrayed by a White House that has generally been more amenable to environmental regulation than its predecessor.

"This reads as if it were cut and pasted from the Bush administration's briefing in Massachusetts," said David Bookbinder, who served as the Sierra Club's chief climate counsel until his resignation in May.
The brief itself reads as a more general argument against seeking to implement climate policies -- those focused on controlling greenhouse gas emisisons -- through the courts.

The brief states that the scope of potential harm from greenhouse gas emissions is so broad as to render the issue more appropriate to the legislative and executive branches (pp. 13-14, PDF):
[P]laintiffs proceed without relying on any statutory right or statutory cause of action, and have sued a handful of defendants from among a broad array of entities that emit greenhouse gases. Moreover, the types of harms they seek to redress could potentially be suffered by virtually any landowner, and to an extent, by virtually every citizen, in the United States (and, indeed, in most of the world). Prudential standing principles counsel in favor of leaving resolution of such claims to the representative Branches.

Plaintiffs’ common-law nuisance claims are quintessentially fit for political or regulatory—not judicial— resolution, because they simultaneously implicate many competing interests of almost unimaginably broad categories of both plaintiffs and defendants. On the plaintiffs’ side, the eight States, one city, and three land trusts in these suits are but a tiny subset of those who could allege they are injured by carbon-dioxide emissions that have contributed or will contribute to global climate change. The court of appeals focused largely on plaintiffs’ asserted injuries as landowners. See Pet. App. 59a-67a. But plaintiffs’ allegations are not unusual in that respect. Global climate change will potentially affect the property interests of most landowners. The court of appeals explained that global warming’s effects come from the land, the sea, and the air, and will threaten the beaches, the fields, the hills—and almost everywhere in between.6 The court of appeals’ analysis of the claims of the land-trust plaintiffs (Pet. App. 62a- 63a) further confirms that nearly all landowners will suffer injuries of the types they allege here. Moreover, global warming’s effects will not be limited to landowners; they will also be felt by governments, individuals, corporations, and interest groups throughout the Nation and around the world.
The brief also explains that the complexity of sources of greenhouse gas emissions also points toward a remedy outside th judicial process (pp. 14-15):
Parallel breadth and complexities also characterize the range of potential defendants in such common-law claims, because the categories of those who emit carbon dioxide (and thus contribute to global warming in the way plaintiffs allege) are equally capacious. Plaintiffs’ complaints name a few entities that operate power plants in 20 States. But the electric-utility industry alone is far larger, to say nothing of many other sectors of the economy that are responsible for greenhouse-gas emissions . . .

The multiplicity of potential plaintiffs and defendants is rendered especially troubling by the very nature of common-law public-nuisance claims seeking to slow global warming. The problem is not simply that many plaintiffs could bring such claims and that many defendants could be sued. Rather, it is that essentially any potential plaintiff could claim to have been injured by any (or all) of the potential defendants. The medium that transmits injury to potential plaintiffs is literally the Earth’s entire atmosphere—making it impossible to consider the sort of focused and more geographically limited effects characteristic of traditional nuisance suits targeted at particular nearby sources of water or air pollution.
The brief states bluntly that (pp. 16, 17):
Courts—when no statute is in place to provide guidance—are simply not well-suited to balance the various interests of, and the burdens to be borne by, the many entities, groups, and sectors of the economy that, although not parties to the litigation, would be affected by a grievance that spans the globe. . .

The confluence in this case of several factors—including the myriad potential plaintiffs and defendants, the lack of judicial manageability, and the unusually broad range of underlying policy judgments that would need to be made—demonstrates that plaintiffs’ global warming nuisance claims should be resolved by the representative Branches, not federal courts.
A question that I have for constitutional scholars:  How does the argument in this brief also not undercut MASS vs. EPA?

Has the Obama Administration effectively ended climate litigation in the US?  It sure looks that way.


  1. You wrote:
    Has the Obama Administration effectively ended climate litigartion in the US?

    Fix litigartion.

    How could this brief be the end of anything. It's just an argument.

  2. -1-Tom Matkin

    Thanks, fixed!

    That is why I wrote, "The arguments in the brief, should they come to be accepted, would appear to put an end to effort to use of the US judicial system to force regulations of greenhouse gas emissions."

    If the court accepts the arguments, they set forth a powerful precedent.

  3. "How does the argument in this brief also not undercut US vs. EPA?"

    I assume you are referring to Massachusetts vs EPA, where the state of Massachusetts sued the EPA for not enforcing the clean air act.

    In that ruling the Justices ruled that EPA did have the authority and duty under the Clean Air Act to regulate CO2.

    In AEP v Connecticut, the plaintiff, the state of Connecticut argues using a common law nuisance argument. In essence arguing the AEP's dog crapped on Connecticut's lawn and AEP has a duty to clean it up.

    If the precedent were to be made that anyone emitting CO2 would be liable for cleanup costs it would place 6 billion people in court suing 6 billion other people.

    In reality, Congress would be forced to issue guidance as what would be an acceptable level of CO2 emissions before it could be considered a nuisance, similar to rules many municipalities have as to the maximum height of ones lawn, or the hours when noise regulations are in effect, etc etc.

  4. Obama just likes the power to be concentrated into the hands of the bureaucrat extremists running the EPA. He does want some pesky court realizing just how stupid the USSC decision to mislable CO2 as a pollutant really was, and setting up the Court to correct its mistake.

  5. Until now the Greenies had a field day. Whatever they asked for they got it. Now people woke up and start asking how did we got here and where the hell are we going to???

  6. Won't matter! We have separation of powers for a reason. A blanket ruling has little to no weight. When each case is considered each-by-each, the normal court processes will flow.

    It does appear to be a preemptive move in hopes of forestalling potential anti-EPA and similar pro-AGW filings.

  7. No, the Administration's position as set out in the Solicitor General's brief in AEP v. Connecticut does not undercut the Supreme Court's opnion Massachusetts v. EPA.

    As an oversimplification of a complex opinion, the Supreme Court ruled in MAss v. EPA that Congress granted EPA authority in the Federal Clean Air Act to regulate greenhouse gases as pollutants. The EPA then acted on that authority to issue regulations covering emission of greenhouse gases as pollutants. Thus, a Federal agency, EPA, occupied the territory.

    In AEP v. Connecticut, the Solicitor General's brief argues that, once a Federal agency like the EPA has occupied the field, a court cannot use a State common law (i.e., judge-made) doctrine like "public nuisance" to in effect regulate the same subject matter. The Federal action "preempts" action under the laws of the States, whether by courts relying on judge-made State common law or relying on State legislative/regulatory action.

    I hope this is useful.



    I hope this is useful.

  8. I generally agree with Mkantor's statement above. However, the Solicitor General, in addition to making a preemption argument, made an argument based on "prudential standing". The argument is that even if the plantiff's are able to establish some type of standing, the Court should nevertheless exercise judicial restraint because the issue is not one that is well-suited to be addressed by the judicial system and it is much more suited to be addressed by the legislative branch.

    The "prudential standing" argument seems very strong to me when applied to Court's devising common law remedies to the global warming problem. I don't think it would have application to Mass v. EPA, where Massachusetts I believe was suing to require the EPA to follow its own rules and the regulatory framework set up by the Clean Air act.

  9. Hey up,

    Off topic: got any comment on Pachauri following -




  10. -10-Dan Olner

    Sure ...

    1. The KPMG report is old news

    2. The report details a remarkable degree of COI for Pachauri. The presence of a COI is not a function of whether the income Pachauri receives is donated to his employer or to starving children in India for that matter. The KPMG report underscores the need for IPCC reform.

    3. I didn't see Glorioil listed, did you?

  11. I took at look at Chief Justice Robert's standing argument in Massachusett's and, in my view, his argument is very good and correct. However, neither my view nor Robert's view counts for much when a majority of the Supreme Court(however slight) disagrees.
    The Government's brief in AEP does not raise the traditional standing argument head on, but instead relies upon a doctrine called "prudential standing". As Jacob notes above, this doctrine can be applied even when traditional Article III standing is established. It is simply a common sense (i.e. prudential) doctrine that Courts can apply to avoid getting themselves wrapped up in controversies that they are not well suited to address.
    On the one hand, I think that the U.S. Supreme Court could side with the Obama administration on the AEP case without overruling its "standing" decision in Massachusett v. EPA. In AEP, the plaintiffs are asking the Court's to devise out of whole cloth a common law remedy to a "global warming" injury. This is very different from Mass v. EPA where the plaintiffs were asking the Court to order the EPA to regulate CO2 in accordance with the legal structure established by Congress in the Clean Air Act. So it seems to me that the two cases can be reasonable distinquished.
    On the other hand, it seems to me that the Supreme Court could have easily side stepped the issues raised in Mass v. EPA by applying traditional standing doctrines in a rather straightforward way. That is what Chief Justice Robert's argued convincingly in my view. If a majority of the Supreme Court was willing to stretch standing doctrines to reach the merits on Mass v. EPA, I could easily see them rejecting a "prudential standing" argument to reach the merits on the AEP case. Ultimately, it will come down to whether one Justice will switch sides.
    From my perspective, attempting to regulate CO2 through piecemeal litigation in courts is an extraordinarily awful idea. It is such an awful idea that I am not sure that is what the plaintiffs are really seeking. I think that in both Mass. v EPA and in AEP, the plaintiffs are trying to force Congress to act so as to avoid untenable regulation by the EPA under the Clean Air Act and even more untenable regulation by Court's under nuisance law.

  12. To further elaborate on my views stated above, I think that the plaintiff's with the help of the Supreme Court are playing a game. They are trying to force Congress to step in order to avoid untenable regulation by either the EPA,through the Clean Air Act or the Courts through nuisance law. The Supreme Court was willing to join in this game of "chicken" in Mass v. EPA. I think that they will be somewhat less likely to join in the game in the AEP case now that President Obama has signaled that he doesn't want to play along.
    An interesting twist is raised by the procedural status of the case. The Supreme Court can avoid expressing a view on the standing issue simply by denying cert on the case. This will let the lower court decision stand without the Supreme Court expressing a view on the merits of the standing issue. I suspect that is what the liberals on the Court will want to do. The twist comes about because it only takes four Justices to grant cert. So the minority in Mass v. EPA can force the Court as a whole to rule on the merits of the AEP case. Whether the minority will want to do that may depend on whether they think the can put together the votes to overrule the lower court. It will be interesting to see what happens.

  13. kdemott said... 13

    "So the minority in Mass v. EPA can force the Court as a whole to rule on the merits of the AEP case."

    That's not the question being asked. The current question is whether the case can be tried at all.

  14. Jonathan H. Adler's status as an expert on constitutional law seems clear, but I can't seem to find any information about Jonathan Zasloff's back ground in constitutional law.

    Could you give me a reference to his "Real constitutional law expert" credentials? At first glance he looks like somebody who is focused on environmental law and activism.

  15. -15-Harry

    Here you go:


  16. Roger: "The report details a remarkable degree of COI for Pachauri."

    I kind of thought you might say that. I'm trying to figure out - as someone who's about to start on his attempt at an academic career - quite how you draw your lines. If and when I work for a research institute, are you saying I can take no action to help attract funds to that research institute?

  17. -17-Dan Olner

    "If and when I work for a research institute, are you saying I can take no action to help attract funds to that research institute?"

    That question is quite a bit too sweeping and overgeneralized. Consider this following:

    Let's say that you work for a medical research institute at a university. Would seeking to attract funds from NIH raise questions of COI? Almost assuredly not.

    However, what if you are doing research on painkillers and you are seeking funds from a drug company. Would that raise questions about COI? Almost assuredly so.

    The good news is that COI guidelines are well-established in many non-governmental, federal and international contexts, see e.g., the BPC report which provides some info and links to such policies:


    I am aware of no existing COI policies under which Pachauri's activities would not be judged to show a COI. Whether such COIs are disqualifying in this case is a different question. Of course, the IPCC lacks any COI policies so there is no way to judge in IPCC context.

    My view is that the IPCC's lack of COI policies is far more problematic than Pachauri's obvious COIs.

  18. I think that these lawsuits are outrageous. It is not just the energy companies that are pumping CO2 into the atmosphere, it is you and I. If the oil and coal power companies were to say , "you want us to stop pumping CO2 into the atmosphere?. Ok, we shut down everything tomorrow!" Our economy and our civilization would collapse. That is why I think that not only are these lawsuits outrageous, they are also immoral. What everyone should understand about these AGW lawsuits is that they are not just about regulating global warming, something that local law courts are not equipped to handle, but they are about the transfer of vast sums of money into the pockets of lawyers. In the tobacco litigation, the tobacco companies entered into global settlements with various states and vast sums in the BILLIONS of dollars were made by lawyers in legal fees. Some money went into the coffers of various states, ostensibly to cover the medical care and social costs of smoking. In return, the tobacco companies bought immunity from lawsuits by the states. All of that money was eventually wastefully spent by the States and lawyers got rich. However, not one penny went to a single smoker. The strategy in these AGW is also clear. Win just one single lawsuit...and the oil and energy companies will come calling and another global settlement involving individual states and these companies will be reached. Again...billions of dollars will change hands, some of it to go into the general coffers of the states to fritter it away and again BILLIONS into the pockets of lawyers and CO2 emissions will not have changed one whit. This is a scam.

  19. Roger - you offer a discussion by Constitutional experts, and we get this?

    "Or maybe it’s just easier to follow the money: it will be interesting to see the campaign contribution reports from utilities over the next three months."

    So Constitutional experts aren't shy about throwing around ad hominem? I wouldn't let that guy handle my no-fault divorce.

  20. Using lawsuits to address global warming is a monumentally bad idea for the legal system and, in the end, will do more damage to the global warming alarmists. Any clear thinking advocate from the alarmist perspective (assuming there are any) should be able to understand this.

    Just as Algore's over-the-top hype, the hockey team's obstruction and refusal to be accountable, and the recent investigatory whitewashes, this is an effort to shortcut the legitimate societal process. Inevitably, it will backfire.

  21. The most dangerous thing that Obama may deliberately or accidentally accomplish in seeking to remove even Court review of CO2 issues is that it leaves only bureaucrats in charge.

  22. "In reality, Congress would be forced to issue guidance..."

    In reality Congress cannot be forced to do anything.