Courts, Environmental Policy & An End Run Around Democracy

The greeenies are determined to punish our economy and means of energy production. If they cannot do it through the ballot box, they learned long ago that the Courts, staffed by many an activist judge, provide an equally good venue. And with the push to declare carbon a pollutant, things are primed to get much worse. This from the WSJ:

. . . Across the country, trial lawyers and green pressure groups—if that's not redundant—are teaming up to sue electric utilities for carbon emissions under "nuisance" laws.

A group of 12 Gulf Coast residents whose homes were damaged by Katrina are suing 33 energy companies for greenhouse gas emissions that allegedly contributed to the global warming that allegedly made the hurricane worse. Connecticut Attorney General Richard Blumenthal and seven state AG allies plus New York City are suing American Electric Power and other utilities for a host of supposed eco-maladies. A native village in Alaska is suing Exxon and 23 oil and energy companies for coastal erosion.

What unites these cases is the creativity of their legal chain of causation and their naked attempts at political intimidation. "My hope is that the court case will provide a powerful incentive for polluters to be reasonable and come to the table and seek affordable and reasonable reductions," Mr. Blumenthal told the trade publication Carbon Control News. "We're trying to compel measures that will stem global warming regardless of what happens in the legislature."

Mull over that one for a moment. Mr. Blumenthal isn't suing to right a wrong. He admits that he's suing to coerce a change in policy no matter what the public's elected representatives choose.

Cap and trade or a global treaty like the one that collapsed in Copenhagen would be destructive—but at least either would need the assent of a politically accountable Congress. The Obama Administration's antidemocratic decision to impose carbon regulation via the Environmental Protection Agency would be even more destructive—but at least it would be grounded in an existing law, the 1977 Clean Air Act, however misinterpreted. The nuisance suits ask the courts to make such fundamentally political decisions themselves, with judges substituting their views for those of the elected branches.

And now that you mention it, the U.S. appeals courts seem more than ready to arrogate to themselves this power. In September, the Second Circuit allowed Mr. Blumenthal's suit to proceed, while a three-judge panel of the Fifth Circuit reversed a lower court's dismissal of the Katrina case in October. An en banc hearing is now under consideration.

But global warming is, well, global: It doesn't matter whether ubiquitous CO2 emissions come from American Electric Power or Exxon—or China. "There is no logical reason to draw the line at 30 defendants as opposed to 150, or 500, or even 10,000 defendants," says David Rivkin, an attorney at Baker Hostetler and a contributor to our pages, in an amicus brief in the Katrina case. "These plaintiffs—and any others alleging injury by climatic phenomena—would have standing to assert a damages claim against virtually every entity and individual on the planet, since each 'contributes' to global concentrations of carbon dioxide."

In other words, the courts would become a venue for a carbon war of all against all. Not only might businesses sue to shackle their competitors—could we sue the New York Times for deforestation?—but judges would decide the remedies against specific defendants. In practice this would mean ad hoc command-and-control regulation against any industries that happen to catch the green lobby's eye.

Carbon litigation without legislation is one more way to harm the economy, and the rule of law. We hope the Fifth Circuit will have the good sense to deflect this damaging legal theory before it crash-lands at the Supreme Court

(emphasis added)

I have long been a vociferous advocate of changing the rules of standing (those rules limiting who may sue) under our environmental laws and under common law claims based on environmental issues. And under the same rubric, I have long been for taking decisions on environmental policy completely out of our court system. It is clear that environmental laws are being abused both to harrass and to act as an end run around the democratic process. It is further clear that our environmentally conscious far left have found fertile ground to work their destructive acts with liberal judges. Indeed, the absolutey worst case of this came when five noted climate scientists on the Supreme Court held, in the 2007 case of Massachusetts vs. Environmental Protection Agency, that the EPA had "improperly failed to determine that “greenhouse gas emissions” are dangerous and within its jurisdiction." In his opinion for the Court, Justice Stevens observed:

A well-documented rise in global temperatures has coincided with a significant increase in the concentration of carbon dioxide in the atmosphere. Respected scientists believe the two trends are related. For when carbon dioxide is released into the atmosphere, it acts like the ceiling of a greenhouse, trapping solar energy and retarding the escape of reflected heat. It is therefore a species — the most important species — of a “greenhouse gas.”

That, from a non-scientist, non-elected official who, on that date, all but decided America's future environmental policy. That is Exhibit A in why activist judges, unable to control themselves and refuse to decide issues of social policy generally, environmental policy in particular, have no business hearing such cases.

To quote once again from Dr. North at EU Referendum:

In the end, there are going to be two groups of people in this world: the greenies and the people who shoot greenies. It's kill or be killed, and the greenies will be the death of us all if this madness continues.