A Tale of Two Editorial Pages

by Matthew J. Franck

The New York Times and the Washington Post displayed two strikingly different variants of liberalism this morning.  Both papers feature editorials on the “climate-change-as-public-nuisance” case argued today in the Supreme Court (American Electric Power et al. v. Connecticut et al.).  Here’s the Times:

Seven years ago, neither Congress nor the Bush administration showed interest in pushing comprehensive laws or rules to curb these gases. Since then, the Environmental Protection Agency has found that greenhouse gases endanger public health as ‘’the primary driver’’ of climate change and has regulated vehicle emissions.

But the electric power industry is working to scuttle this regulation, with the help of the Republican-controlled House. In court, the industry pushes for letting the E.P.A. regulate. On Capitol Hill, it tries to torpedo that authority.

The industry’s quite natural behavior, which would be understandable even if the science were against it, has the advantage of having the rule of law on its side.  The common law of nuisances cannot be a license for judges to do the work of legislators and administrators in this field.  But for the Times, the issue is too important to let such niceties get in the way.  Now contrast the Post:

There’s a good reason that common law is displaced when the political branches speak. It’s not the place of unelected judges to determine how to distribute the costs of addressing climate change across the economy. In addition, a series of suits against individual polluters or groups of emitters is likely to result in an inefficient patchwork of judicial remedies, varying in scope and expense. Consistently applied regulation at the EPA is far better.

It’s reasonable to worry that the political branches may ultimately fail to enforce even the EPA’s modest greenhouse gas policies; many Republicans are eager to defund the agency’s efforts. If that happens, the plaintiffs will have a better case than they do now. But no one should wish to see America’s climate change policy made in court.

Right or wrong on “climate change,” the Post’s editors at least are rule-of-law liberals.  At the Times, they are by-any-means-necessary leftists.  So out of touch are the Times’ editors that they go too far even for Justice Ruth Bader Ginsburg, who said today during oral argument (h/t Lyle Denniston) that the states pressing this lawsuit against the power companies “are setting up a District judge as a kind of ‘super EPA.’”

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