A bizarre waltz

June 7, 2010
When an elected government wants to commandeer economic decision-making, people should have the chance to vote on its plans.

When an elected government wants to commandeer economic decision-making, people should have the chance to vote on its plans.

Thanks to a bizarre waltz between the executive and judicial branches of the US government, though, Americans have seen the privilege slip away in the politics of climate change.

Yet hope endures. A late-May appellate court ruling has reinforced doubt that regulation of greenhouse gases can or should be steered by litigation.

Charging forward

With climate-change legislation stymied in the Senate, the Environmental Protection Agency has been charging forward with regulation of GHG emissions. The agency has tied emissions to toughened mileage standards for new vehicles and is adding GHGs to permitting requirements of the Clean Air Act.

It's in the tender embrace of a 2007 Supreme Court ruling that EPA seeks to regulate GHGs under a law that doesn't mention them.

The court decided, in Massachusetts v. EPA, that the statutory definition of "pollutant" would include GHGs if EPA found that the substances might endanger public health. Predictably, EPA asserted that GHGs cause global warming and therefore threaten health.

Last month the agency issued a final rule imposing CAA requirements on GHGs from large stationary sources, having concluded that regulating the many smaller sources would be impracticable. The legality of that move, like that of the landmark endangerment finding, has been challenged by a small army of trade associations.

Meanwhile, the Supreme Court's expansive view of pollution has drawn attention from the tort bar.

Lawsuits have appeared in which plaintiffs claim to have been injured by events tied to global warming. Because warming results from GHG "pollution," they argue, emitters are responsible for the harm and should pay damages.

The implications are frightening (OGJ, Nov. 2, 2009, p. 32). Adverse rulings could make emitters of carbon dioxide and other GHGs liable for any misfortune traceable by creative lawyers to climate change. But this twisted reasoning has developed a new kink.

'Political question'

In a case involving Murphy Oil USA and several other oil companies, plaintiffs seek relief from damage they sustained on the Mississippi Gulf Coast from Hurricane Katrina in 2005. Their argument: GHG emissions from defendants' operations contributed to global warming, which lifted surface temperatures and raised sea levels, intensifying the storm and causing the damage.

Judges in the district court where plaintiffs filed the original lawsuit dismissed the case, agreeing with defendants that plaintiffs lacked standing and that the case presented "a nonjusticiable political question."

That exercise of wisdom fell victim to a ruling last October by panel of three judges in the US District Court of Appeals for the Fifth Circuit in New Orleans. The panel ruled that plaintiffs did have standing in three of their claims and that those claims "are justiciable and do not present a political question." By letting the case advance, the panel seemed to have cracked the window for a gush of climate-change lawsuits.

The new kink came after defendants in the case, Comer v. Murphy Oil, filed for rehearing before all 16 Fifth Circuit judges. At first, seven of the judges recused themselves, citing personal losses from the hurricane and ties to parties in the case.

When the remaining judges convened, "new circumstances arose that caused the disqualification and recusal of one of the nine judges," according to a May 28 order. The court thus lost its quorum, without which "it cannot conduct judicial business with respect to this appeal."

To experienced court observers, the sidestep was unusual.

"The court effectively invited the landowners and the companies to petition the US Supreme Court to hear the case," said one such observer, John G. Nevius, a shareholder in the insurance recovery practice at Anderson Kill & Olick, New York.

Would that mean further empowerment of the EPA over economic choice without sanction of the electorate?

Not necessarily, said Nevius, who also is an adjunct professor at Pace University School of Law.

"Since the Fifth Circuit has now effectively recused itself," he said in a June 2 statement, "the case and the litigants are left very much in legal limbo that highlights the complexity of the issues and invites the Supreme Court to reconsider the ramifications of Massachusetts v. EPA."

Reconsideration can't be worse than rampaging regulation and a frenzy of tort cases. Maybe their honors will get it right this time.

Now is the time for all.

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