Climate Change at the Court

The Supreme Court heard oral argument yesterday in one of the most anticipated cases of the term, American Electric Power Co., Inc. v. Connecticut, which involves a federal common law public nuisance claim by several states, New York City, and some land trust organizations against five major utility companies. The plaintiffs are seeking injunctive relief against the utilities for the emission of greenhouse gases that the plaintiffs allege have contributed to climate change.

The case poses a set of fascinating and complex issues, but there are at least two especially interesting arguments for MOJ readers to ponder.

First, the case is in surely the most exciting and sexiest area of law today, i.e., the interplay between administrative regulation and common law tort claims (I hope no one doubts me here). There is an amicus brief in support of the plaintiffs by some leading tort scholars advocating a “civil recourse” private law model of torts and arguing that a public nuisance claim can proceed alongside public law regulation through administrative agencies. I’m broadly sympathetic to the argument that tort law is not just regulation by another name and that the private law-civil recourse theory is basically correct for the reasons indicated by, for example, John Goldberg and Benjamin Zipursky in their Texas Law Review article “Torts as Wrongs” and John Finnis in his chapter on natural law in the Coleman and Shapiro Oxford Handbook of Jurisprudence and Philosophy of Law (OUP, 2002) (though Finnis also makes some pointed remarks about the limits of the merely descriptive or conceptual account provided by civil recourse theory). In fact, I use the excellent torts casebook edited by Goldberg, Zipursky, and Sebok in 1L Torts (I use the back half of Richard Epstein’s casebook in Advanced Torts, so students who have me for both courses get a range of views, even if Epstein’s views on torts are difficult to pigeonhole).

I’m wondering, though, if a federal common law claim for public nuisance is a particularly bad example for civil recourse theory and why that might be so. I agree with Ernest Weinrib (The Idea of Private Law, 9-10) that there is something deeply important about the plain fact that a tort claim is between this plaintiff and this defendant. But is that account of private law stretched beyond its limit in a case between several states and major utility companies in an area of law with an elaborate statutory and regulatory scheme already in place? There's also an interesting jurisprudential issue here about how much we should expect from a theory of tort law and its explanatory and justificatory limits.

Second, an amicus brief was filed by several religious organizations, including five Catholic groups: the National Catholic Rural Life Conference, the Maryknoll Office for Global Concerns, the Franciscan Action Network, the Oblates of Mary Immaculate, and the Missionary Sisters of the Immaculate Conception. The brief makes two arguments: (1) “global climate change is a grave and unparalleled threat to God’s creation,” and (2) “justice and morality demand an urgent response to global climate change,” and there are several cites to the Bible, Pope Benedict XVI, and a document from the USCCB.

Now, I’m the last person to say that “justice and morality” don’t have anything to do with law, but that isn’t really the issue here. The religious groups’ amicus brief is, I think, an example of a dangerous temptation in the law and religion field, i.e., a hasty move from religious and moral considerations to hard legal and policy conclusions. AEP v. Connecticut presents a set of legal questions and some fairly technical ones at that, including the scope of implied federal common law, the political question doctrine, standing, and the capacity of the federal courts to enforce an injunction capping greenhouse gas emissions consistent with judicially manageable standards. I don’t know what justice and morality require with respect to the appropriate levels of carbon dioxide emissions from coal-fired electricity-generating plants, but, even I did, that wouldn’t help me decide whether federal courts should be setting those levels instead of expert administrative agencies.

This isn’t reducible to a left-right political divide. Though the New York Times had an editorial on the plaintiffs’ side yesterday, such right-wing voices as the Obama Administration, the Washington Post editorial page, and Laurence Tribe have argued that regulation of greenhouse gases is properly the responsibility of the EPA operating under the statutory authority granted in the Clean Air Act, not the subject of a massive lawsuit in federal court. One can scarcely imagine, say, Justice Breyer—who has spent his life arguing for the importance of administrative agencies—thinking that one of the most complicated regulatory issues of the day should be handed over to the federal judiciary. So my concern (as someone committed to the enterprise of bringing the insights of religion to law) is that crudely arguing that “justice and morality” require a particular outcome in this case doesn't make religious voices prophetic, it just makes them look benighted.