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The Supremes Chill Global "Warming" Alarmists

Posted By Hans von Spakovsky On June 20, 2011 @ 1:51 pm In Legal | Comments Disabled

Common sense prevailed this morning when the Supreme Court dismissed a frivolous and novel global “warming” lawsuit. If you are a radical environmentalist, you know you are in trouble when a unanimous court rules against you and the opinion is written by none other than Ruth Bader Ginsburg, one of the most predictably liberal members of the Court.

In American Electric Power Co. v. Connecticut, eight states and several land trusts sued five of the largest American power companies, including the Southern Company and the Tennessee Valley Authority. The states included Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont, and Wisconsin (although New Jersey and Wisconsin dropped out of the suit). The meritless suit was led by Connecticut’s former attorney general and now U.S. senator, Richard Blumenthal. Blumenthal et. al claimed that the carbon dioxide emissions of the companies’ power plants (which supposedly cause global warming) are a public nuisance that violate federal common law. They wanted a federal judge to set emissions standards.

However, the Court had previously decided in Massachusetts v. EPA in 2007 that the Clean Air Act authorized federal regulation by the Environmental Protection Agency of carbon dioxide emissions. The passage by Congress of the Clean Air Act displaced federal common law. Thus, neither the states nor any other private party could bring a claim for relief under the federal common law theory of “public nuisance.”

In a coherent and entirely rational argument that one does not always see from a liberal justice like Ruth Bader Ginsburg, the opinion pointed out the fallacy of what the plaintiffs were trying to do – convince the federal courts to step into the role of environmental regulators and take the first stab at making complex scientific decisions: “Federal judges lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order.” If the states disagree with the emission standard that is eventually set by the EPA, then they can seek judicial review at that time.

Justice Alito wrote a very short concurrence, joined by Justice Thomas, that consisted of just one paragraph. Alito joined in the judgment of the court, but did so “on the assumption (which I make for the sake of argument because no party contends otherwise) that the interpretation of the Clean Air Act adopted by the majority in Massachusetts v. EPA is correct.” In other words, Alito and Thomas were questioning what many have previously disputed – the erroneous conclusion of the Court that carbon dioxide is even a “pollutant” that is covered under the Clean Air Act.

But it was too much to expect the Court to overrule its prior mistake in that case. Today’s decision is still a big victory for the rule of law and those who do not believe that the courts should be deciding complex public policy issues – issues that our Constitution says are delegated to our legislative and executive branches to decide.


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