Supreme Court: No Place For Global Warming

Image via WikipediaBy Finn Turner

On June 20, 2011, the U.S. Supreme Court decided that regulating global warming was beyond the bounds of the legal system. Instead, the Court said in its decision that it is up to the U.S. Environmental Protection Agency (EPA) and Congress to decide when and how to curb the greenhouse gas emissions responsible for global warming and climate change.

The decision is viewed by many as a backpedal of sorts for the Supreme Court, who in 2007 decided that the EPA should regulated greenhouse gas using the Clean Air Act. The 2007 ruling was significant because the decision was contrary to the Bush Administration's attempts to limit the authority of the EPA and the regulatory ability of the Clean Air Act - particularly in regard to greenhouse gasses.

Despite the change of presidential administrations and a more favorable environmental regulatory climate, the Supreme Court decided that the most recent climate change case was stretching the law too thin.

The case, American Electric Power versus Connecticut was originally filed in 2004. The states involved in the case: California, Connecticut, Iowa, New York, Rhode Island, and Vermont, said that the nation's five largest utility companies: American Electric Power Company, Southern Company, Excel Energy, Duke Energy Corp, and the Tennessee Valley Authority produce ten percent of the nation's carbon dioxide emissions.

The lawsuit brought by the states claims that the greenhouse gasses that cause global warming harm their citizens and wanted to develop a legal framework that compels the power generating companies to curb emissions. The utilities involved said that the suit involved national and international issues that are beyond the scope of federal judges.

The states sued the utilities saying that they violated federal public nuisance common law, which is usually a legal tool used when states challenge other states. This is what the Supreme Court had a problem with, that the public nuisance common law was the wrong legal test for regulating climate change.

In a way, rather than slowing down the debate over global warming regulation, as some may have interpreted the Court's decision, the ruling actually reinforces that 2007 decision - that the EPA is best equipped to create rules for the nation's greenhouse gas emissions.

On the one hand, climate change activists argue that this is a good outcome because it reaffirms the power of the EPA and the Clean Air Act - and new climate change regulations are becoming increasingly likely given the political atmosphere and the fact that climate change skepticism is waning.

The downside to the Court's most recent climate change decision is that it strips the rights of states and interest groups from bring greenhouse gas related lawsuits against utilities and requires that states and communities that are bearing the brunt of climate change to wait for the EPA to actually develop greenhouse gas regulations.

When and if a regulatory system to curb climate change will be developed in the United States is still up in the air.

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