What have the courts figured out that Congress hasn’t yet gotten its arms around?
In a potentially far reaching decision by the United States Court of Appeals for the Second Circuit, the federal courts have once again stepped into the breach and ruled that states and private landowners can sue the five largest electric utilities for climate-related damages they contend were caused by the utilities’ carbon dioxide pollution (Connecticut v. American Electric Power Corp. et al. 2nd Circuit 2009). The appeals court overturned a district court opinion that dismissed the case on the basis that it presented a “political question” that should be decided by another branch of government (Congress or the Executive Branch). The Appeals Court held that until Congressional or regulatory action occurred, common law protections against damage from greenhouse gas pollution are a legitimate basis for a court suit. The case was sent back to the District Court for further proceedings.
Together with the landmark 2007 Supreme Court decision (Mass. v EPA), that has set EPA down the path of regulating greenhouse gas emissions, these court cases underscore a growing recognition by federal courts that the threat of greenhouse gas emissions represent a genuine threat and warrant legal review.
From a practical standpoint, this case cranks up the pressure on both Congress and EPA to act. Case-by case litigation would be disruptive, expensive and problematic given the scope of the challenges we face. The Court’s decision recognizes that these common law public nuisance cases may be preempted by Congressional or executive branch action. It should be increasingly clear to all that the best way forward would be for Congress to pass comprehensive climate legislation.
Regardless of how enthusiastic one is about the Waxman-Markey climate and energy bill passed by the House of Representatives in June, passing the bill in six months through a body that had never before wrestled with climate action was a major accomplishment. (For the record, the Pew Center was enthusiastic about the achievement, while seeing some room for improvement in the bill itself.) This week, Senators Barbara Boxer and John Kerry introduced their climate bill. It takes nothing from the House’s accomplishment to recognize that passing a bill through the Senate will be a steeper climb.
First, there’s the math. House passage requires a simple majority, which Waxman-Markey just managed, at 219 – 212. Passage through the Senate will essentially require a supermajority of 60 votes, because of the filibuster. (If you aren’t familiar with the filibuster, you don’t really need to be. Just trust me, it takes 60.)
Second, the rules of the House give the Speaker a great deal more control over the chamber’s agenda than the Senate gives its leader. Speaker Nancy Pelosi very adroitly defined the process by which her chamber hammered out a workable balance of competing objectives. Senate Majority Leader Harry Reid will be herding cats.
We can get climate change legislation through the Senate, but it’s going to be a completely different animal. I’ll explore the hows and whys in future posts.