The politics of climate change hit the U.S. Supreme Court Tuesday, illustrating the powerful and unpredictable role the court can play in protecting the health and safety of the nation.
Just four years ago, the justices repudiated the Bush administration and ruled 5-4 that the federal government has a duty to regulate carbon dioxide and other greenhouse gases under the Clean Air Act. But on Tuesday, the justices gave a chilly reception to state governments that are suing electric utilities over emissions that contribute to global warming.
Tuesday's case was first brought in 2004 by a coalition of states and environmental groups. They sued the nation's five largest public utilities — companies that together produce 10 percent of U.S. carbon emissions annually. The states were seeking a court order to cap emissions. But for a variety of reasons, the lawsuit languished for five years. In the meantime, the Supreme Court ruled in a different case that the federal Environmental Protection Agency is required to regulate such emissions.
What's more, President Obama took office, and under his lead, the EPA announced plans to regulate where the Bush-era EPA had not. The states' case, however, trudged on in the lower courts, and in 2009, a federal appeals court in New York ruled it could go forward to trial.
At the time, in light of the Obama administration's effort to regulate greenhouse gases, the lower court ruling seemed little more than a footnote. But the utilities appealed to the Supreme Court, where, joined by the Obama administration, they contended that the states have no right to bring a lawsuit like this to enforce public health and safety.
'Everything Has Changed Again'
By Tuesday, when the case was finally argued in the Supreme Court, the political situation had once again flip-flopped. Now, experts like Richard Lazarus, director of the Georgetown University Supreme Court Institute, say the case looks like it could be a good deal more than a footnote.
"Everything has changed again," Lazarus says. "You have a Congress which is trying to undo everything. They're trying to rewind back to 2004."
Indeed, the newly Republican House of Representatives voted this year to strip the EPA of its rule-making authority on greenhouse gases. And while the recent budget compromise did not include that provision, Republicans and some Democrats are widely expected to push again for its enactment.
For this reason, New York Solicitor General Barbara Underwood pleaded with the Supreme Court justices Tuesday not to "close the courthouse doors" to the states.
She acknowledged that the states' lawsuit has reached the court at a "peculiar moment in time." The administration says it has already proposed regulating the same power plant emissions at issue in this case by May 2012. But Underwood maintained that it would be wrong to throw out the states' case on the basis of a regulatory regime "that is said to be imminent, not something that actually exists."
Until the EPA actually enacts a set of federal regulations limiting greenhouse gas emissions, she said, the status quo is that the five utilities in this case are using old and dirty technology to emit 650 million tons of carbon dioxide into the atmosphere each year and that these emissions cause an increase in respiratory illness, a reduction in usable drinking water, a rise in sea levels, beach erosion and flooding.
The federal common law gives the states a remedy for pollution, she said, and it "cannot be" that the mere "promise" of a regulation from the federal government is enough to prevent the states from acting in court.
Her argument met with deep skepticism from the justices across the ideological spectrum — from liberal to conservative.
Justice Ruth Bader Ginsburg told Underwood that "Congress set up the EPA to promulgate standards for emissions," and "the relief you're seeking seems to me to set up a district judge ... as a kind of super-EPA."
Chief Justice John Roberts sounded a similar note, wondering "what factors go into the cost-benefit analysis" for a court to determine appropriate emissions levels, and whether there are economically viable options to reduce carbon emissions without increasing the cost of electricity to customers.
Underwood answered that the states have "alleged that this can be done without increasing the cost to consumers," and that these are facts that "can be proven or not proven at trial."
But Justice Elena Kagan responded that determining the most cost-effective way to reduce emissions "sounds like the paradigmatic thing that administrative agencies do rather than courts."
Yes, Underwood replied, but if there were no agency regulation, and someone was "shooting poison into the air in a way that injured people in another state," the law should give states a remedy in federal court.
A decision in the case is expected by summer.