Author: Luke A. Wake
This week the Supreme Court heard oral arguments in AEP v. Connecticut, a case advanced by a few states and environmentalist organizations on the theory that a defendant can be dragged in to court for emitting green house gases. Under this theory, anyone could potentially be a defendant because the entire world is contributing to the problem of climate change. While the suit targets only a handful of defendants out billions of potential defendants, it fails to offer any compelling rationale as to why those specific defendants have been sued. The only reason offered is because those defendants–all energy companies–emit a lot of green house gases. But, that is the essential question in the case: How much is too much? And is that even a question a court should be answering, or is that the sort of policy judgment reserved to Congress?
Coverage of the oral argument suggests that the justices are deeply skeptical as to whether global warming law suits should be allowed. Even the liberal justices sounded as if they thought global warming is best handled by the political branches of government. Additionally, the commentary indicates that the justices were skeptical as to whether a litigant can demonstrate that he or she has actually been injured by a particular defendant's green house gas emissions. As such, Professor Jonathan Adler is forecasting that the suit will be dismissed for lack of standing, or for improperly raising a political question. Pacific Legal Foundation filed a brief in February urging dismissal on both of those points.