Still Awaiting Our Global Warming "Scopes Trial"

authordefault
on

Republicans in the U.S. Congress are gearing upย to block any major move by the Environmental Protection Agency to regulate greenhouse gasesโ€“even though the Supreme Court ordered the agency to do so back in 2007. And even though the Congressย itself is clearly not going to do anything else to address the problem in the next twoย years.

But yesterday we learned thereโ€™s a paradox at the heart of this obstructionist strategy. If the EPA doesnโ€™t act or is hamstrungโ€“and if Congress continues to dawdleโ€“then guess what? A new global warming case just taken up by the Supreme Court may therefore stand a better chance of surviving the highest level of reviewโ€”thus providing another possible way of restricting and punishing the polluters who are contributing to climate change.

The case, Connecticut v. American Electric Power, has been wending its way through the legal systemย since 2004. Meanwhile, related cases, like Kivalina v. ExxonMobil,ย have sprung up to join it. Letโ€™s call them the โ€œglobal warming tort cases.โ€ ย They have this in common: They try to directly sue major companies who contribute to global warming for damages under a common law doctrine called โ€œpublic nuisance.โ€ย 

In Connecticut v. AEP, itโ€™s a group of U.S. states and their attorneys generalโ€”in many ways the most powerful global warming plaintiffs of all, as they represent large populations of people and vast areas of landโ€“claiming that several large utilities are causing them major damages through climate change and its associated impacts. In Kivalina, itโ€™s a small Alaskan village that has been extremely and acutely damaged by climate changeโ€“it will literally need to be movedโ€“suing the big boys: ExxonMobil and two dozen other companies for monetary damages, andย more.

None of these cases have yet gotten to a full scale trial. Rather, there has been a multi-year hubbub just to determine whether theyโ€™re allowed to go there. For as I wrote in 2008 of the tobacco-style โ€œglobal warming tortย casesโ€:ย 

Such cases will require the direct laying of blameโ€”proving that a particular companyโ€™s (or industryโ€™s) emissions significantly or substantially contributed to a particular climate-related problem. Faced with such claims, the defendantsโ€”or rather, their expensive lawyersโ€”can be expected to relentlessly challenge claims of scientific causation. This, in turn, could trigger a massive courtroom battle over climate science, complete with dueling experts delivering conflicting testimony across a vast gulf of charts and graphs. Try imagining global warmingโ€™s equivalent of the Scopes โ€œMonkeyโ€ Trial, and youโ€™ll have some idea what might beย coming.

So is it really coming? Well, thatโ€™s what the Supreme Court willย decide.

Connecticut v. AEP was originally dismissedย by district court judge Loretta Preska in New York City. She said the plaintiffs were essentially asking her to go beyond the scope of her officeโ€”โ€œpolitical questions are not the domain of judges,โ€ she wrote. After all, weโ€™re all waiting on Congress or the administration or the international community to deal with global warming, right? (Riiiiight.)

But the U.S. Court of Appeals for the Second Circuit disagreed strongly.ย It ruled that the question at stake was not โ€œnon-justicable politicalโ€ one, and empowered the case to goย forward.

So then the power company lawyers brought in the Supremesโ€”even as the Obama administration complicated matters when acting solicitor general Neal Katyalย shockingly agreed with industryย that the case shouldnโ€™t go forward because EPA was taking action to deal with greenhouse gas emissions. (Admittedly, this was before the 2010ย elections.)

Which brings us to the Supreme Court. Any realistic survey of the political and regulatory landscape today suggests little reason to expect that global warming is going to be dealt with by Congress (which is feeling obstructionist). As for EPA? It seems likely to beย obstructed.

If both avenues are blocked, and thereโ€™s no other clear climate remedy, will the Supremes really say that states being damaged by global warming canโ€™t sue the polluters doingย it?

Iโ€™m no lawyer. But you donโ€™t need to be one in order to see that doing so would shut off a pretty important venueโ€”the legal oneโ€”for redressing a problem the other relevant sectors (political, regulatory) arenโ€™tย handling.

After all, the states suingโ€”who didnโ€™t want the Supreme Court to take up this caseโ€”fully admitย that if EPA takes strong action to cut greenhouse gas emissions, their case goes away. But it hasnโ€™t yet. And in the current political climate, Republicans are essentially saying, over my dead body.

So stand by. Maybe weโ€™ll get that Scopes Trial afterย all.ย 

authordefault
Admin's short bio, lorem ipsum dolor sit amet consectetur adipisicing elit. Voluptate maxime officiis sed aliquam! Lorem ipsum dolor sit amet consectetur adipisicing elit.

Related Posts

on

The Alliance for Responsible Citizenship is the global far-right Woodstock, with political and thought leaders mingling with the business elite, conservative nobodies โ€” and me.

The Alliance for Responsible Citizenship is the global far-right Woodstock, with political and thought leaders mingling with the business elite, conservative nobodies โ€” and me.
Opinion
on

The 2025 World Ski Championships in Trondheim are an opportunity for the country to choose a cleaner path.

The 2025 World Ski Championships in Trondheim are an opportunity for the country to choose a cleaner path.
on

An official complaint slams MCC Brussels for failing to declare its funding, and warns that European democracy is under โ€œsevere attackโ€.

An official complaint slams MCC Brussels for failing to declare its funding, and warns that European democracy is under โ€œsevere attackโ€.
Analysis
on

The American refiner pitched a pivot away from Alberta suppliers ahead of President Trumpโ€™s trade war salvo.

The American refiner pitched a pivot away from Alberta suppliers ahead of President Trumpโ€™s trade war salvo.