“‘Implausible’ is the word you’re looking for.” Leave it to Justice Antonin Scalia to lend a helping hand to an attorney grasping for le mot juste.
What Scalia, the Supreme Court, several hundred spectators, and even the security guards overseeing the argument in American Electric Power v. Connecticut found implausible was New York State solicitor general Barbara Underwood’s assertion that imposing carbon-dioxide caps on electricity generators somehow wouldn’t cost a dime. “Laughable” might have been a more apt choice, because laughter did, in fact, ensue.
But it was clear to all that Underwood’s bizarre claim was not the most implausible thing. Far more implausible was her case itself and that it secured a spot on the Court’s crowded docket. Blame the Second Circuit, which ruled that states and private parties could sue a hodgepodge of electricity generators for global warming under the judge-made law of nuisance. To the Second Circuit, this was just a “garden-variety” claim, despite pitting all the world (those affected by warming) against all the world (those of us who breathe) and asking a court to make some unusual judgments — for example, contriving a national-energy policy that permits only the “right amount” of carbon-dioxide emissions.
So when the Supreme Court agreed to hear the case, the conventional wisdom was that it didn’t do so merely to stamp its approval on the Second Circuit’s judgment. (Aiding that impression was the recusal of the reliably liberal justice Sonia Sotomayor.) Still, there was always the risk that the Court would throw a curveball, as it did in the last global-warming case, Massachusetts v. EPA. The sequel promised to be no less contentious.
And it was, for all of five minutes. That was how long it took Justice Kennedy, author of Massachusetts v. EPA, to reject an argument that the plaintiffs lacked standing to sue because their injuries couldn’t be traced to the defendants’ emissions — and that any court-ordered reductions by defendants, which would amount to a drop in the bucket of total accumulated greenhouse gases, wouldn’t bring them any relief. This is similar, though readily distinguishable, from the argument Kennedy waved away in Massachusetts – that states lacked standing to sue to force a federal agency to regulate greenhouse-gas emissions by automobiles. Rather than toss the case on procedural grounds, Kennedy asked why the court couldn’t “take a peek at the merits.”
That was the beginning of the end for the plaintiffs. As Peter Keisler, representing the utilities, explained, “Any court or policymaker thinking about how to alleviate the kinds of injuries that are pled here has to first think what is the appropriate overall level of greenhouse-gas emissions in the atmosphere and then make a comparative judgment about how the reductions that would be necessary to achieve that level should be allocated among all the different sectors based on the social good that that sector produces and what reductions would mean to that social good.” Accordingly, federal common law never reached such claims, and even if it did, they would present political — not judicial — questions to be handled by the political branches.
Moreover, the court would be pressed into answering such questions at a time when a political actor, EPA, is making its own determinations about greenhouse-gas emissions under the Clean Air Act. Keisler argued that the Act, especially following Massachusetts and EPA’s recent regulatory actions, displaces any judge-made law might have existed in the area.
From that point on, Keisler got nothing but softballs.
Acting U.S. solicitor general Neal Katyal, technically on the same side as Keisler as counsel to the federally owned Tennessee Valley Authority, faced a tougher Court. Balancing the policy prerogatives of the Obama administration and its environmentalist allies with the regulatory interests of the EPA and TVA, Katyal arrived at the unusual position of asking the Court to create a new standing requirement that would bar, in effect, just this one lawsuit and others identical to it.
The justices were appropriately skeptical, with Chief Justice John Roberts suggesting that it would be an abdication of the judicial power to arbitrarily refuse to decide a case clearly within its power. But Katyal made up some ground arguing displacement of the common law by the Clean Air Act, though taking a slightly narrower position than Keisler’s with respect to when displacement applies. To Katyal, the common law was displaced only in 2009, when EPA issued its endangerment finding, its first step toward regulating greenhouse-gas emissions, rather than by the Clean Air Act-standing alone.
Oral argument was a disaster for New York’s Underwood, a veteran of the federal solicitor general’s office. From the beginning, she struggled to answer the justices’ questions on displacement and made such, well, implausible claims on fact and law as to damage her credibility to the Court.
At the outset, Justice Ginsburg put plainly her uneasiness with Underwood’s case: “The relief that you’re seeking, asking a court to set standards for emissions, sounds like the kind of thing that EPA does. I mean, Congress set up the EPA to promulgate standards for emissions, and now the relief you’re seeking seems to me to set up a district judge, who does not have the resources, the expertise, as a kind of super EPA.”
But Underwood had no straightforward reply. Although denying that the Court would be acting in any sort of regulatory capacity, she also stated that it would need “to decide whether these defendants can take reasonable cost-effective measures that would help to slow the pace of global warming” — a quintessential administrative activity. Roberts, Alito, Ginsburg, and Kagan each jumped on this inconsistency.
As for displacement, Underwood made a muddle of the law, asserting a view so pinched — there is no displacement until EPA specifically regulates a specific type of emission from a specific source — that it would, in many cases, exceed the tougher standard for the preemption of state law. Pushed on this point, Underwood refused to budge and, bizarrely, turned the issue around on itself: “Well, you say the court [would be] substituting for the EPA. It would be the EPA substituting for the court.” This is, of course, precisely backwards.
Underwood was entirely disarmed by a simple question by Justice Stephen Breyer, his only during the entirety of the argument: “Can the courts set a tax?” In other words, could a court, rather than ordering specific control technology or changes to utility operations, simply impose a tax and let the utilities themselves figure out how to reduce emissions? Underwood’s response:
Actually, the order we’re asking for is less intrusive than that. We ask the defendants to abate the nuisance, we ask the court to order them to abate the nuisance by some amount, informed by what information is available about methods.
Yes, Underwood lost even Breyer. But what really lost him was the idea of breaking off a piece of EPA’s administrative power and bestowing it on a court ill-suited to employ it.
Far from implausible, it is perhaps even likely that the Court will be unanimous in reversing the Second Circuit. The only question is “How exactly?” For three or four of the justices (Roberts, Scalia, Thomas and Alito), standing may be a barrier to reaching any other issue; if so, there could be a 5-3 or even 4-4 split, with the others reversing on the basis that federal common law offers no remedy, or has been displaced by the Clean Air Act and EPA regulations, or that the questions presented are political in nature. If there is a 4-4 split, the opinion would bear no precedential weight.
But the foremost exponent of displacement was Roberts, who has worked hard in previous cases to pull the Court together. If he or others of those who might otherwise get stuck on standing simply rely on Massachusetts v. EPA to decide that issue, all eight justices could get behind a narrow opinion based on the Clean Air Act’s supplanting any federal common law remedy that might have existed. That would be a real achievement in a case that threatened discord on the Court.
— Andrew Grossman is a visiting legal fellow at the Heritage Foundation.