President Obama is right to back lawsuit of carbon emissions

Tuesday, September 7, 2010

ENVIRONMENTALISTS were unhappy with President Obama after climate legislation foundered in the Senate. A week and a half ago, their blood came to an even more vigorous boil after the administration sided with the Tennessee Valley Authority, a federal entity, in a lawsuit over power plant carbon emissions. This left enviros wondering aloud about what had happened to a president who made reversing the rising of the oceans a campaign promise.

Mr. Obama deserves some criticism for his handling of climate legislation. But his administration's decision on this case, Connecticut v. American Electric Power, is more than defensible.

In 2004, a group of states and New York City sued several large electric utilities, charging that the greenhouse emissions their power plants produce were a "public nuisance" because they contributed to global warming, which harmed those jurisdictions. A district court refused to hear the case, saying that it involved questions best left to the political branches of government. The U.S. Court of Appeals for the 2nd Circuit disagreed, arguing that the political branches hadn't developed a policy on carbon emissions; so the states could appeal to common law, which allows for nuisance claims. The Obama administration filed a brief on Aug. 26 with the Supreme Court, which might hear the case. The administration pointed out that since the Second Circuit's ruling, the Environmental Protection Agency has nearly completed preparations to regulate greenhouse emissions from utilities under the Clean Air Act. As long as it addresses the nuisance the states identified -- and the administration makes a good argument that it does -- that policy displaces common law, the legal basis of the suit.

Setting aside the legal technicalities, these sorts of cases are not the best way to reduce America's carbon emissions. Pursuing separate torts against different emitters will result in a patchwork of judicial mandates in lieu of comprehensive regulation, the nature, scale and expense of which will no doubt depend on which judge hears each case. EPA regulation, too, has deficiencies, including the possibility that different presidents will apply it inconsistently. But it's more predictable, and it's universal.

Still, environmentalists rightly worry that the White House won't ever allow the EPA's prepared rules to come into force, given high political opposition to EPA carbon regulation. Congress may also try to strip the EPA of its ability to regulate. If the administration declines to regulate, after all -- or if Congress forces the EPA to desist -- the plaintiffs will have better grounds and better reason to sue than they do now.

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