February 10, 2011

SCOTUS and global warming

By SCOTUS and global warming

Author:  Damien M. Schiff

This week PLF filed an amicus brief in the United States Supreme Court in support of the petitioners in American Electric Power Co. v. Connecticut.  The case concerns whether federal courts can hear public nuisance cases that are based on the greenhouse gas emissions of large energy companies.  The Connecticut case is just one of several similar global warming nuisance cases that have been percolating in the federal courts throughout the nation over the last several years.  (PLF has participated as amicus in many of these cases.)  The Supreme Court's decision to hear this case will be sure to have significant ramifications on the future of global warming based tort litigation, at least at the federal level.

PLF's amicus brief focuses on two points.  First, we argue that the plaintiffs in Connecticut (a collection of states, cities, and environmental groups) lack "standing" to raise their tort claims in federal court.  "Standing" basically means that a plaintiff has to have some special stake in a lawsuit in order to litigate it; in other words, the plaintiff can't simply sue somebody else because he believes in the rule of law, or because he thinks that his federal taxpayer dollars are being illegally spent.  Further, standing requires that there be some causal nexus between the plaintiff's injury and the defendant's conduct; and that a court have the power to redress, to some degree, the plaintiff's injuries.  On these last two points, we believe that the Connecticut plaintiffs' standing falters.  The basic problem is that global warming is not caused by any one emitter; indeed, even if all of the Connecticut defendants were to stop emitting greenhouse gases tomorrow, nobody denies that there would be absolutely no effect on global warming or its associated climate phenomena.

PLF's brief also argues that the "political question" doctrine forbids federal courts from litigating these global warming based tort suits.  Essentially, the doctrine is designed to keep the courts out of issues that are committed to the political branches for resolution.  And it surely doesn't take much analysis to conclude that of all the leading issues of our time, global warming—and how to respond to it—is a quintessential political question that should be left to the political branches to address, and not to the courts.

PLF's brief was just one of 23 filed in support of the petitioners.  We expect that a number of groups will support Connecticut et al.  Oral argument in the case is scheduled for the spring, with a decision likely in June.

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