The Supreme Court’s June 20 decision in Connecticut v. EPA ends the attempt of the radical wing of the environmental movement to revolt against democracy and politics in favor of top-down judicial fiat in climate policy.
Overall, the unanimous decision (8-0 —Justice Sotomayor recused herself because she ruled on the case in a lower court) must be counted a qualified win for business. The court decisively closed off the “nuisance tort” strategy used by the environmentalists to bypass politics and Congress, and to threaten companies and utilities directly by claiming that CO2 emissions, and their supposed consequences like tornadoes and floods, were “public nuisances” for which the companies could be liable.
That’s partly because emissions, and their alleged consequences (whatever they are) travel across state lines and are thus a federal matter—despite earlier decisions by the court itself and Congress that have allowed states to generally regulate their environments more strictly than the federal government.
Instead, said the court, climate policy must be decided in a national arena, by the Environmental Protection Agency and Congress.
In part, the court was defending its prior 2007 decision in Massachusetts v. EPA, its only previous major foray into climate policy. In that decision, the court said that EPA’s right to regulate CO2 as a “pollutant” was inherent in the 1972 Clean Air Act.
That was a decision many disagreed with, because it changed the definition of “pollutant.” The public is comfortable with the idea of regulating pollutants like lead, mercury or PCBs, exposure to which can directly threaten human health. But when the court in 2007 accepted CO2 as a “pollutant,” it seemingly bought wholesale the environmental left’s climate-change model, according to which increased CO2 emissions are directly responsible for outcomes like rising sea levels, more tornadoes, droughts and floods, etc. The utilities argued, self-interestedly but correctly, that the chain of causation for these events is too complex to be laid at the feet of CO2 emissions alone.
Environmentalists put on a game face and made the best of Monday’s ruling. David Doniger, policy director of the Climate Center at the Natural Resources Defense Council, said, “Today’s ruling reaffirms the Environmental Protection Agency’s duty under the nation’s 40-year-old Clean Air Act to safeguard public health and welfare from dangerous carbon pollution.”
He added, “Now the EPA must act without delay.”
And there’s the rub for environmentalists. Putting climate back in the political arena means they must deal with Republicans in Congress, who have already passed a House bill that would strip EPA of its authority to regulate CO2. (It has no chance of Senate passage, and would face a presidential veto if it did pass.)
But what if the 2012 elections produce a Senate and President willing to restrict EPA’s authority to regulate CO2? Will the Supreme Court agree that what Congress gave (in the Clean Air Act) it can revoke?
No one can know. Much depends on how the case would be framed. But given Monday’s ruling, “yes” is a pretty good guess. And that’s good news for business.