In an amicus brief filed Monday (pdf), three GOP lawmakers asked the Supreme Court to dismiss a lawsuit that seeks to hold a few American utility companies responsible for contributing to alleged global climate change.
In their brief, House Energy Commerce Committee Chairman Fred Upton (R-MI), Energy and Power Subcommittee Chairman Ed Whitfield (R-KY), and Senate Environment and Public Works Committee Ranking Member James Inhofe (R-OK) argue that the federal judiciary is in improper forum for regulating greenhouse gas emissions.
The high profile case, American Electric Power v. Connecticut, is of major importance for U.S. energy policy and the proper delineation of government power.
Eight states and New York City are suing to require six utility companies to reduce greenhouse gas emissions under federal common law. The plaintiffs claim that carbon dioxide emissions from the utility plants are a “public nuisance.” In the lower court, the Second Circuit Court of Appeals misapplied Supreme Court precedent and sided with the plaintiffs. Read the full case here (pdf).
The three Republican lawmakers argue that:
Article III courts are not equipped to make judgments about the appropriate emissions standards for utilities located throughout the country. Judicial establishment of such standards would violate decades of Supreme Court precedent and unconstitutionally interfere with Congressional and Executive branch efforts to address climate change-related matters.
The Supreme Court should heed this advice and deny the lawsuit. The plaintiffs are nothing more than “global warming” alarmists that seek to impose tremendous costs on all American businesses, energy suppliers, and citizens.
Under the “political question doctrine,” courts should decline to hear cases that are constitutionally committed to another branch of government.
In another amicus brief (pdf), the CATO Institute explains that:
If allowed to proceed, this case and others like it will require federal judges to assume the role of environmental, industrial, and economic policy czars, forcing them to act as Article III administrators over some of the most hotly-contested and momentous issues of our time.
Aren’t there already enough Czars?
It should be noted that the Obama Administration also agrees with the Republican leaders and the CATO institute. According to a New York Times article:
Although the Republican lawmakers and the administration are at odds over most areas of climate policy, they are in agreement that public nuisance claims on climate change issues should not be recognized by the Supreme Court.
America’s founders established three coequal branches of government to avoid an over-concentration of power in one arena. If federal judges begin setting carbon dioxide emission standards for utilities and businesses, they threaten that balance.
The CATO Institute’s brief continues:
Fidelity to the separation of powers here is not mere formalism. Judicial vigilance is particularly necessary where the coordinate branches of government might not simply acquiesce to, but may welcome judicial action that relieves them of the need to make—or be held accountable for—decisions resolving difficult questions of national policy. Indeed, “[t]he more this court interferes in policymaking.., the more we allow the Legislature to avoid difficult questions, and the more our citizens get accustomed to turning to the courts for solutions rather than to their elected officials.” Hancock v. Comm’r of Educ., 443 Mass. 428, 472-73 (Ma. 2005) (Corwin, J., concurring).
Activist attorney generals, (one of which is newly elected Senator Richard Blumenthal (D-CT) who is famous for, among other things, pretending that he served in Vietnam) that were dissatisfied with Congress’ inability to pass a comprehensive cap-and-trade bill, initiated this lawsuit. Their dissatisfaction aside, legislation of this magnitude is the solemn purview of congress and the executive.
The Supreme Court should also decide that the states lack proper standing to bring suit. Permitting plaintiffs to claim harm from carbon dioxide emissions would open an endless floodgate of litigation.
The CATO Institute explains “any entity affected by climate change [will be able to] sue any alleged carbon-emitter—nearly every individual and business on the globe—that could ‘contribute to’ the alleged and speculative consequences of hundreds of years of greenhouse gas emissions.”
The American Electric Power case is important to watch because other environmental activists are also filing lawsuits using wild “global warming” theories. The Supreme Court should take this opportunity to firmly establish that it will not go into the business of carbon dioxide regulation, nor will it entertain these types of public nuisance lawsuits.
The Supreme Court will hear oral arguments in the case April 19, 2011.