On Tuesday, the United States Supreme Court will hear oral arguments in the case of American Electric Power v. Connecticut. It is too bad that the Court’s proceedings aren’t televised as the debate here should be lively. First, you need to know the background.
In 2004 the States of Connecticut, New York, Iowa, New Jersey, Rhode Island, Wisconsin, Vermont, and New York City sued the 5 largest power companies in the United States. The plaintiffs, under the common law doctrine of public nuisance, claimed that the emissions from these companies’ power plants were contributing to and exacerbating the following “harms”:
- increased smog
- shrinking snow packs in California
- rising sea levels
- reduced crop and livestock yields in Iowa, and
- lower water levels in the Great Lakes.
A federal district court in New York threw the case out, but the United States Second Circuit Court of Appeals reinstated it. And, so it is now before the United States Supreme Court. (Justice Sotomayor recused herself from this case as she was a member of the Second Circuit Court of Appeals when the matter was decided there.)
The heart of the plaintiffs’ claim is that ,
the companies’ additions to world-wide carbon dioxide levels have “contributed” to the process of global climate change. [emphasis supplied]
The sole question before the Court is whether this law suit presents what lawyers call a “case or controversy”, in other words, have the plaintiffs been injured by the defendants conduct, and, if so, can the court’s craft a remedy for the alleged harm. I may come out on the losing side, here, but, to me, the answer to that question is, no.
Let’s just say, for the sake of argument, that carbon emissions are simultaneously causing sea levels to rise, and Great Lakes water levels to fall. The plaintiffs cannot hope to contend that the defendants “additions to carbon levels” are to blame for these occurrences, without also arguing that the plaintiffs themselves are contributing to this perceived harm every time one of their citizens exhales. Thus, at least in my mind, the plaintiffs have been no more injured by the defendants’ conduct than they have been by the actions of their own residents.
And, then, of course, there is the question of whether the courts can fashion a remedy if the defendants are found to be at fault. Closing every power plant in this country will not stop China and other developing countries from emitting carbon. Nor will it stop mammals from breathing.
To me, the “nuisance” here is the plaintiffs wasting taxpayer dollars taking this matter all the way to the Supreme Court. At least Wisconsin and New Jersey came to the same conclusion, and dropped out of the law suit.