Last week, I claimed that, in terms of cases with broad importance that will be decided this term, American Electric would be “unmatched.”
I am not alone. Yesterday, Acting Solicitor General Neal Katyal started his argument off with what is at stake: “In the 222 years that this court has been sitting, it has never heard a case with so many potential perpetrators and so many potential victims . . . . The very name of the alleged nuisance–‘global warming’–itself tells you much of what you need to know. There are billions of emitters of greenhouse gasses on the planet and billions of potential victims as well.”
Reading the transcript, I felt badly for New York Solicitor General Barbara D. Underwood who had the unenviable task to arguing this case. Almost every argument she made was shut down by the Court.
On the merits of whether a sole district court could regulate carbon dioxide emissions, Ms. Underwood received nothing but skeptical comments from the Justices. “The whole problem of dealing with global warming is that there are costs and benefits on both sides,” said Chief Justice John Roberts, “and you have to determine how much you want to readjust the world economy to address global warming, and I think that’s a pretty big burden to impose on a district court judge.”
And it wasn’t just the conservatives. Even Justice Elena Kagan wondered whether the States were contending that there is “a federal common law cause of action against anybody in the world.” Justice Kagan noted that the State’s briefs “talk a lot about how these are the five largest emissions producers, but I saw nothing in your theory to limit it to those five. Is there something that you think limits it to large emissions producers?”
I was surprised at how little concern the Justices displayed about the State’s broad view of standing. Only Justice Scalia seemed to be cynical, when he offered the hypothetical of lumping “all the cows in the country” that emit methane gas. “Would that allow you to sue all those farmers?” he asked. “I mean, don’t you have to do it defendant by defendant? Cow by cow, or at least farm by farm?”
Scalia also used the hypothetical of subjecting every person, who exhales carbon dioxide through breathing, to public nuisance suits because they generally contribute to global warming. (I touched on the butterfly effect view of standing last week.)
Reading the transcript it was sometimes difficult to discern whether the Justices were asking questions about Article III standing, prudential standing, the merits of allowing district courts to decide public nuisance suits, the political question doctrine or all of them simultaneously.
For example, Justice Alito asked how a district court would weigh the tradeoffs of deciding this complaint—an factor which applies to several of these issues. If a district court caps emissions, it may lead to increased costs of electricity, which in turn could cause jobs to be lost in a region. Under that scenario, Justice Alito wondered how would a district court decide what is “reasonable?”
Ms. Underwood responded, “We’ve alleged that this can be done without increasing the cost to consumers. That may seem . . . that . . .” she hesitated, fishing for the proper word.
“ ‘Implausible’ is the word you are looking for,” Justice Antonin Scalia said.
Justice Scalia’s choice of word basically summed up the State’s chances of winning this case: implausible.
The case is American Electric Power Company Inc., et al. v. State of Connecticut, et al., No. 10-174. To read more coverage of American Electric, check out the New York Times, SCOTUS Blog, USA Today, Los Angeles Times, the Cato Institute, and the ACS Blog.