The Supreme Court and climate change

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.

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The Sound Off Sister was an Assistant United States Attorney for the Southern District of Florida, and special trial attorney for the Department of Justice, Criminal Division; a partner in the Florida law firm of Shutts & Bowen, and an adjunct professor at the University of Miami, School of Law. The Sound Off Sister offers frequent commentary concerning legislation making its way through Congress, including the health reform legislation passed in early 2010.


  1. Eric on April 16, 2011 at 3:17 pm

    "the companies’ additions to world-wide carbon dioxide levels have “contributed” to the process of global climate change. [emphasis supplied]"… Are the plaintiffs on drugs? This kind of nuisance law suit should never have made it to the USSC. A gargantuan waste of time and money!

    • GdavidH on April 17, 2011 at 4:56 am

      Better that it be done now rather than if another liberal judge gets on the court.

      This could possibly end the debate, at least on a constitutional level. Keep the junk science in the private sector, maybe.

    • Lynn on April 18, 2011 at 3:29 am

      Great point GdavidH, we've got to get the Supreme Court to decide as many cases as possible before President Obama gets another appointment. By the way. How about we limit the time Congress meets to drop the level of carbon dioxide.

  2. concernedat18 on April 16, 2011 at 4:23 pm

    This is why my stat's teacher told us said, "stats the most important math class you can take". Here is several of the statistical problem's with global warming.  One can not conclude causality from a correlation. It only is a sign that one thing could be causing the other.  Why, because it could be an unknown variable causing the changes.  Also because correlations are bidirectional.  Mathematically, it works either way, it could be a rise in temperature causing a rise in CO2 levels the correlational coefficient would be the same.  As climate gate revealed, for the historical data, they collected data from trees, 120 trees, but used data from only 3 trees.  The absolute MINIMUM sample size is 30.  An ethics review because of Climategate said there was nothing unethical done but they, "did not use the best statistical tools", so why would we believe anything they said, based on those conclusions.  On top of that the released emails said that they cannot explain why there is not the warming that they expected

    • SoundOffSister on April 16, 2011 at 5:26 pm

      As Yoda said, "you have learned well, Luke".

    • concernedat18 on April 16, 2011 at 5:54 pm

      thanks, i had a lib say to me i cited to many facts. you haven't said enough of your own opinion.  And yes that was a college student.  Didn't you hate that when you tought, too many facts?

  3. Dimsdale on April 16, 2011 at 5:26 pm

    Historically, the data shows that increases in atmospheric CO2 did not precede warm periods, but actually followed them, as increases in vegetation would cause.


    Perhaps the plaintiffs could also explain how, a mere 125K years ago, in the last interglacial period (we are at the end of one now), the atmosphere was warm enough to raise sea levels 15-18 FEET, significantly more than the "doomsday" 2-3 inches predicted by the Chicken Little Gore acolytes today.  They might also explain how other planets in the solar system are experiencing similar warming trends.  Then they should stare at the sun for a couple of hours….


    AGW is more politics than science, more hubris than fact, and more hot air is being produced by the fanatics that support this hypothesis than any of the CO2 increases they claim is causing the alleged warming.

  4. Tim-in-Alabama on April 18, 2011 at 8:32 am

    Even if the power companies did cause the sea levels to rise, the point is moot because Obama's election caused the sea levels to recede. So let it be written. So let it be done.

  5. David R on April 18, 2011 at 2:58 pm

    Because of the politization of the issue and the political nature of the courts, a decision by the Supreme Court will not be the final word, but just another word among many already spoken and the many more to follow.  To move the process along, we need to be better informed, and we can't get that way by getting our science from Dems or Reps and their minions. The issue is extremely complex, and there are countless sources of information on the web that are science based, and presented without emotion.  By the way, if we don't get our facts right, the Chinese will bury us re. renewable, sustainable energy technology. They are already ahead of us.

  6. steve g on April 19, 2011 at 4:06 am

    let the working fools drive littie-bittie electric cars.

    it is right, and just, that politicians in  CT get limo drivers, and hire more police, to protect their lies and wealth, and seize homes of real working .. fools.

    And let our senators fly around the world, poluting the skies, to wage more wars to protect their personal interests.

    how much oil is consumed each day, with three or 4 'conflict/wars', and to operate 130 airbases around the world?

    Why you ask … is gasoline $4.50 per gallon?   Why  $1000. to fill your oil tank in the basement, to keep the children warm, and water pipes from freezing?

    Oh .. shut up you fool!  Work harder …  shared  sacrifice!  Let the foreclosing attornies sell your house away for the good of the public, and the poor fulk!   More police to keep you safer!

    More wars to protect our country… oh enjoy the bumpy ride .. as we slide .. to socialism .. you fool.


  7. Don Lombardo on April 20, 2011 at 5:11 am

    This hoax will never die. There are too many feeding at the trough and giving donations to – the just as guilty- slippery politicians. 

  8. ricbee on April 20, 2011 at 11:59 am

    The court should rule that it cannot possibly make a informed decision on this matter in a timely manner & dismiss it.


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