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  • Global Warming Advocates Receive a Chilly Reception from the Supreme Court

    Today the Supreme Court took up the case of American Electric Power Co. v. Connecticut, reviewing a Second Circuit decision finding that states and private parties could sue electricity generators for global warming under the judge-made law of nuisance.  To the Second Circuit, this was just a “garden-variety” claim, despite pitting all the world (those affected by warming) against all the world (those of us who breathe) and asking a court to make some unusual judgments—for example, contriving a national energy policy that permits only the “right amount” of carbon dioxide emissions.

    For those thinking that those sorts of judgments are not the kind usually made by courts—you’re right.  Even Justice Ginsburg was clearly uneasy with the states’ case, explaining: “The relief that you’re seeking, asking a court to set standards for emissions, sounds like the kind of thing that EPA does. I mean, Congress set up the EPA to promulgate standards for emissions, and now the relief you’re seeking seems to me to set up a district judge, who does not have the resources, the expertise, as a kind of super EPA.”

    You know you are having a bad day as counsel when you get lectured on separation of powers by Justice Ginsburg.  Making matters worse, counsel for the states, New York State Solicitor General Barbara Underwood, had no plausible reply.  Though denying that the court would be acting in any sort of regulatory capacity, she also stated that it would need “to decide whether these defendants can take reasonable cost-effective measures that would help to slow the pace of global warming”—a quintessential administrative regulatory activity.  The Chief, Alito, Ginsburg, and Kagan each jumped on this inconsistency.

    And then there was the whopper.  Underwood argued that imposing carbon-dioxide caps on electricity generators somehow wouldn’t cost a dime.  This led Scalia to quip to counsel that “‘Implausible’ is the word you’re looking for.”

    Far from implausible, it is perhaps even likely that the Court will be unanimous in reversing the Second Circuit—the only question is how, exactly.  For three or four of the justices (the Chief, Scalia, Thomas, and Alito), standing may be a barrier to reaching any other issue; if so, there could be a 5-3 or even 4-4 split, with the others reversing on the basis that federal common law offers no remedy or has been displaced by the Clean Air Act and EPA regulations or that the questions presented are political in nature.  If there is a 4-4 split, the opinion would bear no precedential weight.

    But the foremost exponent of displacement was the Chief, who has worked hard in previous cases to pull the Court together.  If he or others of those who might otherwise get stuck on standing simply rely on Massachusetts v. EPA to decide that issue, all eight justices could get behind a narrow opinion based on the Clean Air Act’s supplanting any federal common law remedy that might have existed.  That would be a real achievement in a case that threatened discord on the Court.

    Posted in Legal [slideshow_deploy]

    9 Responses to Global Warming Advocates Receive a Chilly Reception from the Supreme Court

    1. Pingback: Global Warming Advocates Receive a Chilly Reception from the Supreme Court – The Foundry | Rightlinks Blog – Greece: Setting the standard for Democrats everywhere

    2. Redfray, Pea Ridge, says:

      This by far is one of the most stupid court case of the century, maybe ever? How on earth can a court make a decision on a law of nuisance without knowing what affect is causing the nuisance? What factual evidence do we have that proves carbon is causing problems for our ecology? I'm afraid our judges have no probable cause to decide this case outside of making jobs for there own kind. The evidence of carbon nuisance is skewed by political people using taxpayers money.

    3. Leon Lundquist, Dura says:

      I am not comfortable with the Standing of the EPA making Carbon Dioxide a 'pollutant.' Seems to me the Congress already Voted on that Issue, so I wish the Court would Rule in favor of Congress and the Separation of Powers, it is a High Crime and Dictatorship for the EPA to have created such a harmless pollutant. The fact is the Earth has had increased levels of CO2 many times before, and Al Gore's big lie to Congress of 50 ft. Sea Level Rise is quite impossible and never ever happened in the past! It is crazy fiat for EPA to regulate Carbon based on the Big Junk Science of Climate Change (originally named "Global Warming!") The EPA doesn't have the Constitutional Powers to make Regulations that are directly against Congress and its Intent. So, Hell No! EPA doesn't have Standing! The whole thing is a Rip Off! It should be pretty easy to see that it is unlawful to declare Chemistry by fiat! Then to profit by it!

      Never thought we'd see the day in America when the Supreme Court says "It is perfectly legal to destroy American Industries! And lawful to do it for no good reason!" Crazy stuff at 5 to 4, like the Election Fraud from ACORN, and bringing down the Housing Market. The Supreme Court says "You can do anything you want to Americans, so long as you phrase it correctly!"

    4. Betty-Jane Osborne, says:

      The American Power Co. as well as others that push the global warming bit needs to study their world history. The is the (Ibelieve) the third warming the world has gone thru. Do they remember reading about the Ice Age? What happened there?

    5. Pingback: Gulf Oil Spill, One Year Later | The Foundry: Conservative Policy News.

    6. Pingback: Global Warming Advocates Receive a Chilly Reception from the Supreme Court | Rob Graham & Associates Legal Blog

    7. Wes in cincy says:

      The "Ice Age" ? Oh, that's what froze the brains of the liberals.

    8. Bobbie says:

      The only people that sees man as the crime of nature's global warming, are the ones brainwashed or profiting and appreciate sacrifice put on people. If carbon dioxide were poisonous, no GREEN would exist anywhere!!! (In regard to plant life!")

      I can see improperly handling things causing damage to the earth, like suicide bombers and war mongers carried out using the resources for perverted weaponry. The government dispensing man-made chemicals to clean up oil spills that nature cleans up on her own! CORRECT THESE DIRECT THREATS!

      All this within man's control and accountable. Nothing is wrong with using natural resources for survival in America as it's fine everywhere else in the world of suicide bombers and war mongers. Too many (intentionally) brainwashed victims!

    9. Linda, Somerset, TX says:

      Just another nuisance lawsuit tying up our courts. Some folks may have been watching the news reports on Tiger Woods when another news story was aired about the 'fudging of numbers' by global warming proponents. My favorite story a couple of years ago was when 'scientists' went to the North Pole to gather data on the effects of global warming there, and went home because it was too cold.

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