Article argues for dismissal of states' global warming case

Jessica M. Karmasek Apr. 14, 2011, 10:45am

Connecticut Attorney General George Jepsen, whose state is one of the plaintiffs in the case.

WASHINGTON (Legal Newsline) - The Washington Legal Foundation, in a publication last week, says the U.S. Supreme Court must reverse an appeals court's decision in favor of a group of plaintiffs suing over the effects of global warming.

The article "AEP v. Connecticut: Will the Supreme Court make defendants do 'their share' to mitigate global climate change?" was published Friday as part of the Washington Legal Foundation's Legal Backgrounder.

Mark W. DeLaquil, an associate with the law firm Baker & Hostetler LLP, and David B. Rivkin Jr., a partner at Baker & Hostetler LLP who co-chairs the firm's major motions and appellate litigation team, wrote the four-page article.

In it, they write that the nation's high court will "either affirm the commonsense principle that federal courts should not make contentious pollution control policy through the adversarial system or will open the floodgates to regulation by litigation."

At issue is the case American Electric Power Co. v. Connecticut. The Supreme Court has granted certiorari in the case.

The Court must decide whether states and private plaintiffs should be entitled to "sidestep the political process by conscripting federal courts into regulating carbon dioxide emissions through 'the same principles we use to regulate prostitution, obstacles in highways and bullfights,'" the authors write.

A group of states and an environmental group filed suit against five electric utilities they allege to be the largest greenhouse gas emitters in the United States. The plaintiffs characterize global climate change as a "public nuisance" and ask the court to order the defendants to cap their carbon dioxide emissions by the amount necessary to achieve their "share of the... reductions necessary to significantly slow the rate and magnitude of warming."

A district court held that the plaintiffs' claims were barred by the political question doctrine. The court reasoned that it could not adjudicate their claims without deciding the appropriate level of global greenhouse gas emissions, what industries or entities should be responsible for reducing emissions, and the amount by which each industry or entity should be required to reduce emissions.

Deciding these questions would have required the court to make numerous non-judicial "policy determination(s)," it said.

A two-judge panel of the Second Circuit reversed the lower court's decision. The appeals court reasoned that the action was an "ordinary tort suit" and therefore would not require the court to make non-judicial policy determinations.

The Supreme Court granted certiorari to review three discrete legal issues: standing, the political question doctrine and the existence and potential displacement of federal common law.

"At the heart of each issue facing the Supreme Court is the stark reality of what the plaintiffs have asked the federal judiciary to do: set environmental policy for addressing a global issue through party-driven litigation, on a piecemeal basis with the distinct likelihood of conflicting decisions, rather than through politically accountable legislative or administrative processes," DeLaquil and Rivkin write.

The scientific issues at hand are "complex" and "contentious," the lawyers argue. "Federal judges are selected for their legal acumen, not their scientific expertise, and it does the public and judiciary a disservice to require them to decide such exceptionally complicated scientific disputes," they add.

Recognizing a federal common law remedy in this case also would implicate significant constitutional concerns, they argue.

"Legislative power is vested in Congress, not the judiciary," the two write, pointing to Article I of the U.S. Constitution.

Simply put, the case is not fit for judicial resolution, DeLaquil and Rivkin say.

"If the Supreme Court recognizes a federal common law nuisance action over something so ubiquitous as global carbon dioxide emissions, and if it brushes off inherent jurisdictional defects of such an action, it will open the door to further judicial meddling in the affairs of the political branches," the two conclude.

"Given the boundless nature of this litigation -- all individuals are potential plaintiffs, all are potential defendants, all activity is a cause -- failing to reverse the Second Circuit may do more to entrench the 'rule of judges' than previous much-criticized judicial 'activism' on social and cultural matters."

According to its website, the Washington Legal Foundation works with its allies in government and the legal system to maintain balance in the courts and help the government strengthen America's free enterprise system. The foundation champions free market principles, limited and accountable government, individual rights, business civil liberties, and legal ethics, it says.

From Legal Newsline: Reach Jessica Karmasek by e-mail at

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