Earlier this month, the U.S. Supreme Court agreed to hear a case on utilities companies being sued for emitting carbon dioxide. That the case has reached the Supreme Court indicates how confused our judicial system is on the subject of climate, but it is even more troubling that that the courts may be allowed essentially to decide climate policy.
In 2004, eight states, including California, along with New York City and three environmental interest groups, sued five electric utilities, alleging that the carbon dioxide emissions from the utilities represent a “public nuisance” by contributing to global climate change. The district court dismissed the case, arguing that this was a “non-justiciable” issue that should instead be decided by elected officials. In 2009, the U.S. Court of Appeals overturned the dismissal. The utilities appealed, and now the issue resides with the Supreme Court.
The “public nuisance” approach is not unique to the lawsuit-happy United States (where similar cases have been brought against oil companies). In 2008, for example, British Greenpeace activists were acquitted of causing £30,000 of damage to a coal-fired power plant in Kent, England—not because they didn’t do it, but because the defendants claimed a “lawful excuse” to damage property at the power station in order to prevent even greater damage resulting from climate change.
That utilities companies could be sued for emitting carbon dioxide is problematic for a number of reasons. For one thing, carbon dioxide emissions from utilities companies is based not on the nuisance activities of the companies, but on the public need for affordable electricity—a technology that has enabled advancement in nearly every sector impacting quality of life. As the American Farm Bureau noted in an amicus brief in a similar case, “because the production and use of fossil fuels and the attendant GHG emissions are so closely tied with all facets of modern life, a finding that using fossil fuels and emitting GHGs constitute a nuisance is akin to saying that modern life constitutes a nuisance.”
For another thing, labeling CO2 as a public nuisance—or even as a pollutant—has limited scientific basis. Certainly there is a link between elevated CO2 emissions and global climate change. But given the ubiquitous and global nature of CO2 emissions, there can be no logical way to distinguish between various emitters to label one as a nuisance and another not. For example, another significant source of CO2 emission is soil carbon oxidation. This is a natural process, so it would be hard to classify as a nuisance. But soil carbon emission is significantly influenced by land use. In agricultural production for example, tillage practices accelerate CO2 emissions. Should farmers and gardeners also be subject to legal action, and presumably punishment, as nuisance polluters?
Unfortunately, that’s not the most problematic part of allowing the courts to decide questions of CO2 emissions. If the case is allowed to proceed, it means that the courts can essentially regulate CO2 emissions. In this process, appointed judges who lack the accountability of elected officials decide cases in a piecemeal fashion. The courts can indeed function as a robed politburo, imposing policy and overriding the will of the people, which is surely the result activist groups have in mind. But even the high court, despite some members’ pretentions of being wiser than others, is not a repository of universal expertise or even sound judgment. Recall that the U.S. Supreme Court once ruled that people who look like President Barack Obama were only three-fifths of a person.
If the Supreme Court allows this case to move forward, the courts will be obligated essentially to craft climate policy—or endorse climate policy crafted by the plaintiffs. Because of the complexity of the issue, and the extent to which it has very real implications for the economic and social health of the country, this should not be left to the courts to decide.
Climate policy is a scientific question, and in addition to the scientific evidence, any sensible climate policy must consider a host of interconnected social, economic, and national security issues. The courts simply cannot provide this through a series of fragmented case decisions. A Supreme Court that is truly wise will let elected officials craft U.S. climate policy based on the best scientific evidence.