New Frontiers in Climate Litigation

Somehow I overlooked this Rivkin and Casey op-ed (“Climate Change Heads to the Supreme Court”) in the Wall Street Journal yesterday about the upcoming argument in American Electric Power (AEP) v. Connecticut, which is the second major climate change lawsuit to make it all the way to the high court. The Supreme Court badly botched the issue last time, in its 5 – 4 Massachusetts v. EPA decision in 2007 that extended the domain of the Clean Air Act over carbon dioxide, even though Congress never intended the Act to cover CO2. The AEP v. Connecticut case is quite different, however; it is not about statutory construction like Mass. v. EPA, but is an old-fashioned “nuisance” lawsuit out of the common law tradition, arguing that since power plants cause global warming, they should be liable for damages or face some kind of injunctive penalty.
A Federal district court had tossed out the lawsuit as a non-justiciable “political question,” but the 2nd Circuit Court of Appeals reversed the district court and said the suit could proceed, arguing that “federal courts have successfully adjudicated complex public nuisance cases for over a century.” The Supreme Court will not be deciding the merits of the case–just whether the case can be tried. If the Court gives the go-ahead, the case may yet fail on other procedural grounds–indeed, it might fail an evidentiary test under the relatively recent and still-murky Daubert case standards about scientific evidence in the courtroom. Indeed, climate skeptics might well welcome a full-blown trial in which a court has to rule on the facts of human-caused global warming. Going further, even if a court found in favor of the plaintiffs, there is the problem of a remedy: is injunctive relief–turning off a power plant–going to stop the putative harm? Will it deter other emitters or potential emitters? Mostly likely, of course, the plaintiffs and their lawyers are seeking money damages–and a new cash cow for the trial bar. In other words, a fresh legal hellhole for the American economy. The end goal here is probably something like the tobacco master settlement, in which energy producers end up coughing up a share of their profits to special interest groups and favored government programs, while doing little about the underlying problem that supposedly motivates their cause.
The Supreme Court in other cases has sensibly identified several obstacles to judicial management that such a “discriminating inquiry” may uncover, including the “difficulty of fashioning relief,” the necessity of assessing matters that are “delicate, complex, and involve large elements of prophecy,” and the prospect that a court will be plunged into a “sea of imponderables.”
Consider these observations on why the case should be dismissed from one of America’s leading legal academics:

Thus, instead of formulaically concluding that the label [garden variety tort] attached to the plaintiff’s cause of action rendered the case justiciable, the Second Circuit should have inquired into whether nuisance doctrine affords courts the tools with which to coherently manage the specific problem of global climate change.
Had the Second Circuit looked beyond the face of the plaintiffs’ complaint, it would have recognized that nuisance doctrine is woefully ill-suited to that task. Unlike traditional pollution cases, where discrete lines of causation can be drawn from individual polluters to their individual victims, climate change results only from the non-linear, collective impact of millions of fungible, climactically indistinguishable, and geographically dispersed emitters. Given this fact, granting a plaintiff relief from the coastline-changing or other adverse consequences of global climate change bears no genuine resemblance to identifying a responsible defendant and ordering a reduction in its emissions. To the contrary, worldwide climate change is a systemic phenomenon that is intractable to anything but a systemic political solution, one that the adversarial and insulated model of nuisance litigation is structurally incapable of providing.

And just who do you suppose wrote this? Richard Epstein perhaps? Or Michael McConnell? Nope; the correct answer is–Larry Tribe!
Although this looks like a man-bites-dog situation, I suspect there is mischief afoot underneath Tribe’s seemingly sensible arguments that should put us on our guard. I suspect what Tribe is really trying to do is preserve the latitude for the regulatory state, for fear of two possible outcomes of a common law nuisance suit on climate. The first is that such suits will fail–and there are lots of substantive legal reasons why this suit will likely fail at trial–thus setting back the cause of global warming alarmism. The circumstances are not remotely similar to tobacco suits, if you think about it for a moment. The second, however, is that they might succeed, but that the discounted value of the damages awarded would not make the game worth the candle for the trial bar, which would also be a setback to climate alarmism.
JOHN adds: I wouldn’t rule out that Tribe was being sincere; although definitely a liberal, he has had integrity on subjects like the 2nd Amendment.
Crazy as it may be from a legal perspective, I would almost like to see a jury trial on global warming–push all the chips to the middle of the table and let eight ordinary Americans decide. I have a feeling the climate realists would win. This is what I woke up to this morning; we are now nearing the end–I hope!–of the fourth-snowiest winter in recorded Minnesota history:
Just sayin’.


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