The Supreme Court heard oral arguments this week in the global-warming case American Electric Power v. Connecticut. I previously commented on American Power here, noting the unique logic applied by the Second Circuit in holding that the rather inventive nuisance theory relied on by the plaintiffs is not barred by the political-question doctrine. I will be stunned if the Supreme Court ultimately allows the case to proceed, especially after considering the issues raised during oral argument.
One difficulty with the case is the arbitrary way it singles out certain power companies that contribute to greenhouse-gas emissions by relying on a theory of contribution. Justice Scalia amusingly highlighted the point by suggesting a different arbitrary grouping:
[Y]ou’re lumping them [the power companies] all together. Suppose you lump together all the cows in the country. Would … that allow you to sue all those farmers? I mean, don’t you have to do it defendant by defendant? … Cow by cow, or at least farm by farm?
Cows are potential culprits because they release methane as a byproduct of their digestive processes.
More seriously, the more likely fatal concern for the case — one that was raised by several justices in different ways — is whether a single district-court judge has the power to usurp the regulatory activity of the entire Environmental Protection Agency. To my mind, litigation is a bizarre way to address the complex issue of climate change where we are all both offenders and victims. Regulatory processes, which better allow for the contributions of many minds in figuring out how to balance the need to reduce hydrocarbon emissions within the structure of national and global economies, are much better suited to the issue.
But I still can’t help but wonder: whatever happened to blaming ducks for acid rain?
A transcript of the entire oral argument can be found here.