The Obama Administration has issued a remarkable brief siding with energy companies over whether they should be liable for the effects of their greenhouse gases as a "public nuisance." The arguments in the brief, should they come to be accepted, would appear to put an end to effort to use of the US judicial system to force regulations of greenhouse gas emissions.
Greenwire reports that the administration's postion has come as a shock to some environmental advocates:
Matt Pawa, an attorney representing plaintiffs in the case, said he and his colleagues expected the White House to stay out of the matter. During a meeting with more than 30 administration lawyers at the solicitor general's office on June 24, it seemed they had "a lot of friends in the room," he said.The brief itself reads as a more general argument against seeking to implement climate policies -- those focused on controlling greenhouse gas emisisons -- through the courts.
"We feel stabbed in the back," Pawa said. "This was really a dastardly move by an administration that said it was a friend of the environment. With friends like this, who needs enemies?"
Top attorneys at environmental advocacy groups are buzzing about the brief, sources say. Some feel betrayed by a White House that has generally been more amenable to environmental regulation than its predecessor.
"This reads as if it were cut and pasted from the Bush administration's briefing in Massachusetts," said David Bookbinder, who served as the Sierra Club's chief climate counsel until his resignation in May.
The brief states that the scope of potential harm from greenhouse gas emissions is so broad as to render the issue more appropriate to the legislative and executive branches (pp. 13-14, PDF):
[P]laintiffs proceed without relying on any statutory right or statutory cause of action, and have sued a handful of defendants from among a broad array of entities that emit greenhouse gases. Moreover, the types of harms they seek to redress could potentially be suffered by virtually any landowner, and to an extent, by virtually every citizen, in the United States (and, indeed, in most of the world). Prudential standing principles counsel in favor of leaving resolution of such claims to the representative Branches.The brief also explains that the complexity of sources of greenhouse gas emissions also points toward a remedy outside th judicial process (pp. 14-15):
Plaintiffs’ common-law nuisance claims are quintessentially fit for political or regulatory—not judicial— resolution, because they simultaneously implicate many competing interests of almost unimaginably broad categories of both plaintiffs and defendants. On the plaintiffs’ side, the eight States, one city, and three land trusts in these suits are but a tiny subset of those who could allege they are injured by carbon-dioxide emissions that have contributed or will contribute to global climate change. The court of appeals focused largely on plaintiffs’ asserted injuries as landowners. See Pet. App. 59a-67a. But plaintiffs’ allegations are not unusual in that respect. Global climate change will potentially affect the property interests of most landowners. The court of appeals explained that global warming’s effects come from the land, the sea, and the air, and will threaten the beaches, the fields, the hills—and almost everywhere in between.6 The court of appeals’ analysis of the claims of the land-trust plaintiffs (Pet. App. 62a- 63a) further confirms that nearly all landowners will suffer injuries of the types they allege here. Moreover, global warming’s effects will not be limited to landowners; they will also be felt by governments, individuals, corporations, and interest groups throughout the Nation and around the world.
Parallel breadth and complexities also characterize the range of potential defendants in such common-law claims, because the categories of those who emit carbon dioxide (and thus contribute to global warming in the way plaintiffs allege) are equally capacious. Plaintiffs’ complaints name a few entities that operate power plants in 20 States. But the electric-utility industry alone is far larger, to say nothing of many other sectors of the economy that are responsible for greenhouse-gas emissions . . .The brief states bluntly that (pp. 16, 17):
The multiplicity of potential plaintiffs and defendants is rendered especially troubling by the very nature of common-law public-nuisance claims seeking to slow global warming. The problem is not simply that many plaintiffs could bring such claims and that many defendants could be sued. Rather, it is that essentially any potential plaintiff could claim to have been injured by any (or all) of the potential defendants. The medium that transmits injury to potential plaintiffs is literally the Earth’s entire atmosphere—making it impossible to consider the sort of focused and more geographically limited effects characteristic of traditional nuisance suits targeted at particular nearby sources of water or air pollution.
Courts—when no statute is in place to provide guidance—are simply not well-suited to balance the various interests of, and the burdens to be borne by, the many entities, groups, and sectors of the economy that, although not parties to the litigation, would be affected by a grievance that spans the globe. . .A question that I have for constitutional scholars: How does the argument in this brief also not undercut MASS vs. EPA?
The confluence in this case of several factors—including the myriad potential plaintiffs and defendants, the lack of judicial manageability, and the unusually broad range of underlying policy judgments that would need to be made—demonstrates that plaintiffs’ global warming nuisance claims should be resolved by the representative Branches, not federal courts.
Has the Obama Administration effectively ended climate litigation in the US? It sure looks that way.