In American Electric Power Co. v. Connecticut, the Supreme Court is faced with the next, inevitable step in a line of climate change litigation including, most notably, Massachusetts v. EPA in 2007. The case includes, as did Massachusetts, a jurisdictional question of whether the plaintiff states and land trusts have standing, either under Article III or under the “prudential” principles of standing. Perhaps of broader interest, however, is the substantive question facing the Court, which is whether, in light of the powers vested in the Environmental Protection Agency under the Clean Air Act, a federal common law public nuisance claim is the proper course by which to seek redress for the rise in global temperatures to which the defendants are alleged to be substantial contributors.
The power companies’ and the government’s positions in this case are mostly aligned, in that both seek to have the complaint dismissed, although on slightly different jurisdictional grounds.
The private power companies argue that the plaintiffs lack Article III standing, while Petitioner Tennessee Valley Authority, which is a power company owned by the federal government, takes the position that the EPA’s efforts to regulate greenhouse gases following the Massachusetts decision (in fact, those efforts actually came after the initiation of the present suit) require a decision that, prudentially, the case is not proper for judicial decision. Both Petitioners essentially argue that the EPA’s regulatory efforts displace any common law nuisance claim, and that the case should thus be dismissed. The displacement analysis is comparable to that of preemption, although the two doctrines are distinguishable.
First, preemption looks to whether an area or subject ostensibly governed by state law is in fact subject to federal law that controls that area, to the exclusion of the state law. ERISA provides an example of a wholly preempting statute, in that a state law cause of action purporting to address matters governed by ERISA is entirely preempted. Second, and related to the first difference between displacement and preemption, displacement is favored by the courts, while preemption is not. Displacement operates under the notion of separation of powers, and on the assumption that law made by a political body is a more appropriate basis on which to decide a legal dispute than is the federal common law. Conversely, a preemption analysis has as its backdrop strong principles of federalism, so that states’ authority to regulate in an area should not be negated haphazardly. Accordingly, Congress’s intent to preempt the states in any area must be clear, so that courts have no doubt that the principle of supremacy should govern.
In addition to the tension between principles of federalism and separation of powers underlying the parties’ respective positions, American Electric raises two points that particularly piqued my interest. First, the case raises interesting issues of justiciability in the face of such sweeping harms, and of the proper role of the courts in our society. Second, the case presents an opportunity to consider the Precautionary Principle, a concept entirely apropos in the context of global warming.
First, if we take the Respondents’ position at face value, their claim is that they have been injured by the release of greenhouse gasses, that the EPA is not doing anything about it (or at least nowhere near enough), and that the courts should therefore provide redress in the form of equitable relief for the purported public nuisance. The problem is that the claims in this case are entirely unprecedented, as counsel and some of the Justices noted several times during oral argument. The potential plaintiffs in these types of claims could include every human on Earth, and the potential defendants include those same people, as well as corporations, livestock, and other greenhouse gas emitters.
The potential scale and import of this case brought to mind the question of what the proper role of a court is, namely, should a court made up of a handful of unelected people decide the proper measure of redress for the impending planet-wide catastrophe that global warming could be? Although superficially, the answer could be, yes, if there is a wrong, the courts should provide a means of redressing that harm, period, issues of judicial competence and the proper standards by which to afford relief quickly muddy the waters.
As for judicial competence, I am not entirely convinced that a judiciary’s inability to form committees and hold hearings makes it much less capable to deal with complex issues than a legislature. This notion is underscored by the courts’ regular adjudication of particularly difficult (albeit more individualized) issues in complex, multi-party, multi-jurisdictional litigation. Also, and as is especially true in this case, with the cause of action grounded in non-constitutional federal common law, any perceived lack of competence can be remedied by legislative or regulatory action. In fact, even if the Court were to recognize the availability of the common law cause of action at this time, further efforts by the EPA to regulate greenhouse gasses would very likely displace further claims.
The question of creating a workable standard for recovery, however, I believe presents a much more difficult impediment to a judicially crafted form of redress for global warming. With every member of the industrialized world at fault to some extent, a nuisance action against five of the larger emitters seems wholly out of proportion to the scale of the problem. Although success in this suit would bring these petitioners under judicial management, the relief would be a mere drop in the atmospheric bucket, with more potential parties than could ever be named, and no reasonable or even judicially available method to determine each source’s pro rata share for their emissions. More fundamentally, too, is the issue of causation: although the emission of the gasses is surely the most substantial factor, what about every individual who has turned on an electric appliance in the past century? Is it really equitable to say that the producers, as opposed to the end users of cheap electricity, are the responsible parties? And should a court make that decision?
Similarly, the second point about the American Electric case that drew my interest was that, as Solicitor General Katyal noted at the outset of his argument, the Court has never heard a case like this before, and, indeed, the world has never faced a crisis like this before. Although I agree entirely with these statements, they brought to mind a very troublesome point for me, which is that even in light of the near unanimous scientific recognition of human-caused global warming, there is still a substantial push to deny the existence of the phenomenon and to refuse to act upon it. Now that it has become absolutely clear that global warming is real (or at least as clear as scientific models can get; more on that in a moment) and that it is our fault, the mentality of disregarding science, preferring instead to grope for the halcyon days of peak oil, has the effect of unnecessarily and dangerously obstructing the needed reversal of our habits of consumption that have brought us to the brink.
This mentality is precisely what the concept of the Precautionary Principle is intended to address. In environmental law and policy, the Precautionary Principle has become a rallying cry in the face of foot-dragging and denialism, urging all members of society to err on the side of caution, especially in the context of global warming. The precautionary principle states:
When an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically. In this context the proponent of an activity, rather than the public, should bear the burden of proof. The process of applying the precautionary principle must be open, informed and democratic and must include potentially affected parties. It must also involve an examination of the full range of alternatives, including no action.
Wingspread Conference, Wingspread Consensus Statement on the Precautionary Principle (1998), http://www.sehn.org/wing.html.
The notion that this is some wacky enviro–theory is belied by the widespread internalization of the principle of precaution across our society. Although the principle is stated in the first precept of the “Leave No Trace” ethic of wilderness travel (and life generally), which is “Plan Ahead and Prepare,” it is also memorialized in the Boy Scout Motto, “Be Prepared,” which suggests similar preemptive caution of the risks ahead. But the concept is not limited to outdoorspeople; the general risk averseness that keeps most people from doing exceedingly stupid things, and which has kept humans out of danger for millennia, is precisely the mentality underlying the Precautionary Principle. Old adages such as “better safe than sorry,” “the early bird catches the worm,” and “a stitch in time saves nine” all suggest that foresight and caution have been long recognized as virtues to be cultivated.
Thus, in light of the virtue of the Precautionary Principle, as well as my prediction that the Court will not allow the federal common law cause of action to go forward in light of the displacing effect of the EPA’s efforts under the Clean Air Act, the global threat facing us all will have to be dealt with the old fashioned way—through individual effort and sacrifice. So, even if the EPA would not quickly implement rules governing greenhouse gases (which they have), and if the Court declines to acknowledge the common law nuisance claim for greenhouse gas emissions (which, based on the efforts of the EPA, I believe is probably the proper outcome), we can each begin to take the small steps necessary to slow and reverse the effects of those emissions. We can walk or bike to the grocery store instead of hopping into the car to grab a gallon of milk and a loaf of bread, plant a tree or install an entire native landscape, go meatless one day (or more) each week, or, as we begin the air conditioning season, try to enjoy the seasonal warmth instead of cranking the AC back down to February in Wisconsin. Each of these efforts is, admittedly, minor and most could even be enjoyable, but the point is that there is plenty that each of us can do, without waiting for Congress, the EPA, or the Court to tell us how to take care of our home.