There doesn’t seem to be a blockbuster case this term. Sure Snyder v. Phelps presented our worst forms of speech, captured our attention momentarily, and even led to a thought-provoking dissent by Justice Alito. But the narrow 8 to 1 ruling effectively made that case a non-issue going forward. Then there is the upcoming decision in Wal-mart v. Dukes, which will undoubtedly affect a large number of people—just in that case. But it lacks a hot button constitutional issue; instead, it is limited to a question about the scope of the Federal Civil Rules. To the average American—boring.
One case, however, could potentially reach out and touch the lives of every American. The case is American Electric Power Company Inc., et al. v. State of Connecticut, et al., No. 10-174. In terms of impact to the citizenry, resolution of fundamental questions of constitutional structure, and potential money involved, American Electric is unmatched.
The case started back in 2004. Frustrated with Legislative and Executive inaction over carbon dioxide omissions, eight States and others filed a complaint seeking to hold five major energy companies liable for “global warming.”
The complaint alleges that these energy companies operate facilities which emit a lot carbon dioxide, which causes pollution. So far so good.
But the complaints allege far more than that. Here is how the reasoning goes: the emissions from the energy plants contribute to elevated atmospheric levels of greenhouse gases (although these defendants’ plants only produce 10% of the country’s annual emissions). The elevated gas levels contribute to world-wide global warming, which in turn contributes to a wide range of future catastrophe, including human “respiratory problems,” raised “sea levels,” more “droughts and floods,” “wildfires,” and “widespread loss of species and biodiversity.”
Basically, the emissions from these plants produce or will produce the end of the world—this sounds like the plot of a disaster movie.
And yes, those are some pretty ballsy claims, even for States like California.
So the States want a single federal district court to do what Congress and the President won’t or can’t. They want the court to limit carbon dioxide emissions for only these defendants, which would, let’s be honest here, require the court to set some sort of policy preference.
The district court passed, concluding that decisions about the nation’s energy policy were meant to be decided by Congress, not a lone court.
Two members of the Second Circuit reversed and concluded that public nuisance claims can actually be decided upon well-known tort principles without requiring the court to wade into policy matters reserved for the other branches of government.
Really? A single district court can determine—after holding various hearings listening to various scientists—that a few plants out of all the emissions-producing sources in the world are public nuisances and then decide to how to rectify the problem by regulating those plants. I’m not a political science major but that sounds really close to what Congress does. Or, I should say, what they are supposed to do.
As to the standing question, the Second Circuit held that energy plants contribute to global warming generally and global warming generally contributes to every known global disaster, therefore, these energy plants were partially the cause of the harms alleged by the States. In addition, the court believed that limiting the carbon dioxide omissions at just the plants owned by these defendants would reduce global warming.
This is the butterfly effect theory of standing—that a small change at one place in a complex system can have large effects elsewhere.
I kind of like this method of standing. Under this theory, I could sue my neighbor for driving that noisy old diesel pickup because it generally contributed to global warming which generally contributed to the hail storm last year that dented my car.
This vision of standing is a litigator’s dream.
Two side notes on the Second Circuit’s decision: first, only two panel members participated in the opinion, because then Judge Sotomayor heard the case but left the panel to assume her new role as Justice; and second, the panel members were both appointed by Republican Presidents (who says all courts are ideological).
It doesn’t take bifocals to see that American Electric will have a far-reaching impact. As the U.S. Chamber of Commerce argued in their brief, this case “has staggering economic implications.” Several Congressmen, in an amicus filing, made the same claim: “climate change issues” have “enormous domestic, international, and economic implications.”
No matter how you look at it, this case will impact just about everyone. If energy companies can be sued under a butterfly effect standing doctrine, those companies will incur huge litigation costs. If the district court rules that energy companies must substantially reduce their emissions, those companies will have to spend millions of dollars to produce energy through other methods. And guess who will be footing the bill for these new corporate expenditures? Us. The consumer.
On the other side, a decision reversing the Second Circuit would drive a stake through the organs of global warming litigation. No longer will States or private organizations be able to exert pressure on Congress through public nuisance suits. This is unfortunate, since Congress has been unable to reach an agreement (shocking, I know) on how to limit carbon dioxide emissions and prevent global warming, and this suit by the States presents a very real chance for the country (actually one man sitting on the bench in Manhattan) to come to some decisions on how to do that. In other words, the district court could make some policy decisions that actually limit global warming, albeit in a rather small incremental way.
So depending upon how the Court rules. In five years you could expect to have cleaner air as well as higher energy bills. Or you will continue to breathe the same or slightly more polluted air without a huge raise in energy bills, well, except for petroleum.
Don’t those sound like great options?
The Court hears argument in American Electric next Tuesday. You can read more about American Electric at SCOTUS Blog, the Volokh Conspiracy, ACS Blog, and the Cato Institute.