Wednesday, February 9, 2011

Climate Change as Public Nuisance

In case you missed it, the New York Times summarized the Supreme Court case on climate change as a public nuisance, oral argument scheduled for April 19th. Several states and conservation outfits have sued carbon-intensive utilities under federal common law alleging that the companies are behaving as a public

There are a variety of hurdles to the lawsuit. Paramount among these is the contention that by creating the Clean Water and Clean Air Acts, Congres has preempted the judiciary's authority to hear environmental cases. Before the passage of the afore mentioned statutes, environmental regulation was largely fashioned by the courts in an ad hoc process. Plaintiffs would prove that a polluter was damaging their land and sue (private nuisance). In cases of wide-spread damage, public officials might initiate suit for the good of the community (public nuisance). The common law provided for relief fashioned for the two parties before the judge, who possessed a wide array of tools to mitigate, enjoin, or compensate the parties as eh or she saw fit. Plaintiffs would be able to recover damages directly from the polluters, allowing the injured party to rectify specific harms. Because pollution became so widespread and a cause for national concern with the publication of Silent Spring (Rachel Carson, 1962). While environmental regulation proceeded in a piecemeal fashion, the public demanded an active federal agency to prevent environmental abuses, protect endangered species, and restore spoiled land for public use. Federal environmental regulations originated in an attempt to augment and standardize existing the pollution control regime both among the states and the courts.

The states are often called the laboratories of democracy, but the courts are less often credited as the petri dishes of policy. Common law environmental regulation follows course from the 18th century with a long history of evolution and innovation. The states involved in the carbon lawsuit allege that the federal environmental laws were designed to augment the individually tailored solutions available to judges and focus additional public resources on environmental conservation. The federal government believes that the Clean Air Act supplants the existing regime.

The Clean Air Act explicitly preserves state common law and state legislative powers. At issue is whether it prevents public nuisance remedies from being issued by federal judges. The rights of citizens to sue individually are preserved in the bill:
"[n]othing in this section shall restrict any right which any person . . . may have under any statute or common law to seek enforcement of any effluent standard or limitation or to seek any other relief."
Yet the forum is not explicitly clarified, and the parties in this suit are public entities not private citizens. However, what is assured individually ought to be assumed to be possessed collectively. It is my hunch that environmental legislation was not meant to prevent public nuisance suits when the EPA failed to perform its duties of protecting the public from pollution.

That becomes the paramount question in the suit: Has the EPA allowed a public nuisance to develop in its (and Congress's) failure to regulate greenhouse gas emissions? The issue of preemption must be stated sightly differently for the immediate analysis: does the federal environmental regulation regime constitute the entire universe of possible pollutants that a government may regulate? Perhaps an analogy may be illustrative. The controlled substances act maintains a schedule of prohibited drugs. Congress has partially delegated authority for updating this list to the Department of Justice in emergency situations. This would tend to lead us to believe that the federal government, having the greater institutional capacity for the prohibition, control, and oversight of pharmacological substances, has occupied the field. Yet, states retain the power to create additional regulations. When new drugs appear, localities can react to small-scale trends before they become concerning to federal officials.

The courts, however, are not states. They face a separate set of institutional limitations and have a different set of capacities with which to face them. This raises the question broached by three Republican housemakers who filed an amicus curiae brief, James Inhofe (OK- Climate change denier), Fred Upton (MI- chairman of House Energy Committee), and James Whitfield (KY- Energy and Power subcommittee chair):
This case involves political and public policy matters that are being resolved by the Legislative and Executive branches of government. These public policy determinations are necessarily within the purview of the Congress and the Executive branch, not the Judicial branch, because of the complexity and significance of the environmental and economic issues that they raise.

Amici respectfully submit that Article III courts are not equipped to make judgments about the appropriate emissions standards for utilities located throughout the country.
Courts, however, are not being asked to set national energy policy in this case, crafting subsidies, taxes, regulations, and agencies to deal with climate change. That is, as Mr. Inhofe ironically states, the province of Congress. The Republicans then contradict themselves. They simultaneously claim that one-size fits all legislation is required to fix the problem and that one-size fits all legislation would be inappropriate "for utilities located throughout the country."

In regard to the claim that the Republican-controlled House is working on climate change regulation, the Supreme Court should take a "We'll believe it when we see it" attitude.

But the interesting thing is that at the core of this statement is simply a disbelief that any public dispute might be settled outside of Congress. If the federal courts were to act in the way that the Republicans expect, there would be a problem. But that is only because they expect judges to act like legislators, crafting broad regulations for every utility in the United States. This raises the spectre of a polycentric dispute.

Polycentric disputes are typically political because they involve tradeoffs between multiple actors. Optimum outcomes are hard to measure, requiring lots of input, negotiation, and imagination. These are problems best left to a legislature because normal adjudication fails to produce ideal outcomes. The common illustration is attempting to design a football team from a group of athletes. Many interests are differently served by fielding different combinations of athletes, but an adversarial process which simply sifts between two parties' proposed solutions is not likely to produce a winning team.

The carbon emission lawsuit, however, is not a polycentric problem. The judge who crafts a solution will not be allocating limited rights to pollute among multiple actors, a problem that a market is particularly good at (which is why cap-and-TRADE is the center of the Democrats' climate bill). The question before the judge is fairly simple: are these public utilities providing more harm than good to the public? That is the classic formulation of public nuisance suits. It is also a question which the courts are uniquely well positioned to answer. Courts are good at a number of things, and fact-finding is one of them. Dealing with particular parties before them is another. This suit requires answers to that problem and no other one.

Of course, if the Congress did produce a climate change bill this session, the suit may prove moot. That does not mean that the problem is not justiciable; rather, the court would have to accept the legislated solution, which may well be worse policy than what a court could devise.

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