June 20, 2011

Can it really be a victory if it's unanimous?

By Can it really be a victory if it's unanimous?

Author:  Damien M. Schiff

Today the Supreme Court issued its decision in American Electric Power Co. v. Connecticut, a global warming nuisance lawsuit that presented important questions on the role of the federal judiciary in greenhouse gas regulation.  PLF filed a brief in the case arguing that the federal judiciary could not hear the plaintiffs' public nuisance claims brought against several power companies, because those plaintiffs lacked standing to sue, and because the lawsuits boiled down to a political question.

The Court ruled 8 to 0 (Justice Sotomayor was recused because she was on the Second Circuit panel below) that Congress had "displaced," through the Clean Air Act, whatever federal common law of public nuisance governing global warming that might otherwise have been available to the plaintiffs.  The Court remanded the case to the Second Circuit for a determination of whether the plaintiffs could proceed with their state law public nuisance claims.  Now, my thoughts, seriatim and numeratim:

1.    The Court "affirmed" on jurisdiction by a 4 to 4 vote (the decision is therefore not precedential on jurisdiction).  That means, I suspect (we don't know the Court's vote on these issues) that Justice Kennedy joined the Court's liberal wing to hold that at least one plaintiff had standing to sue, and that the political question doctrine did not bar the suit.  Now, Justice Kennedy was in the majority in Massachusetts v. EPA, which held that at least states have standing to sue under the Clean Air Act to force EPA to act on a rulemaking petition, and that EPA had the statutory authority (if it wanted to excercise it) to regulate greenhouse gases under the Act.  Here, there were state plaintiffs, so presumably that led the same votes in Massachusetts to align again here.  The Court's discussion on the jurisdictional issues implies in my view that the Court would be very reluctant to extend Massachusetts' standing holding to nonstate actors.  That would bode ill for cases like Native Village of Kivalina, another public nuisance action ending in the Ninth Circuit, where the plaintiff is not a state.  But the American Electric Power Court's discussion of the jurisdictional issues also gives me the impression that the Court wasn't too interested in the political question doctrine objections.  That's not terribly surprising in that nobody really knows how to apply the doctrine (sort of like the amorphous "I know it when I see it" test), and that most if not all of the Court's conservatives (who might otherwise have been inclined to dismiss on jurisdictional grounds) dislike loose and formless standards and tests.

2.    What happens now?  The Court's opinion takes pains to explain that the standard for statutory displacement is much less than the standard for preemption.  That's significant because the Second Circuit could now hold that, even though the plaintiffs' federal public nuisance claims have been displaced by Congressional action, the plaintiffs' state public nuisance claims can go forward.  I should say, though, that this result could have obtained even with a dismissal on standing or political question grounds, because such a decision would bind only federal courts (state courts are free to have relaxed standing and justiciability requirements).  Yet the Court curiously leaves open the possibility that the state law claims are preempted.  The issue wasn't briefed in the Supreme Court, but I suspect that the power companies here will argue the point vigorously below.

3.    Footnote 2 of the Court's opinion is very curious.  It is appended to the end of a paragraph describing EPA's reasoning as to why greenhouse gas emissions are contributing to global warming and why Clean Air Act regulation of those emissions is necessary.  The footnote states, "For views opposing EPA's, see, e.g., Dawidoff, The Civil Heretic, N.Y. Times Magazine 32 (March 29, 2009).  The Court, we caution, endorses no particular view of the complicated issues related to carbon dioxide emissions and climate change."  WOW!  The Court clearly wants to distance itself from some commentators' positions that Mass. v. EPA was the Court's de facto endorsement of the view that manmade greenhouse gases are contributing to global warming.  Could the footnote be the result of the fact that Justice Stevens, author of the majority opinion in Massachusetts, is no longer on the bench?  The footnote is also an interesting comment because it's clear that there are at least some global warming skeptics on the Supreme Court.  I haven't read the cited article (I'll be sure too, now, though), but I would love to know whether it was cited in any of the amicus briefs.

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