On the (more) good news front, yet another court has weighed in to thumb its nose at the ridiculously reasoned SCOTUS opinion in Massachusetts et al v. EPA which strongly suggested that EPA should regulate emissions of carbon dioxide from new automobiles – and presumably all GHGs from all substantial sources, including water vapor – as a pollutant under the Clean Air Act.
In the same context of auto emissions – but with California seeking not regulatory authority but damages in tort from auto emission-caused global warming – the U.S. District Court for the Northern District of California (!) stated the obvious:
“The court is left without guidance in determining what is an unreasonable contribution to the sum of carbon dioxide in the earth’s atmosphere, or in determining who should bear the costs associated with global climate change that admittedly result from multiple sources around the globe.”
How much is too much and whose pocket would I pick, how badly? I admit that this stance is grounded specifically in the plaintiffs relying on a long line of jurisprudence on transboundary nuisance, which the court noted are “distinguishable because none of the pollution-as-public nuisance cases implicates a comparable number of national and international policy issues.” Still, isn’t it amazing the difference it can make when one dares to shrug off likely political venom and confront the fragile nature of the claims?
This applies to the court here, as well, which actually showed courage when finding that “injecting itself into the global warming thicket at this juncture would require an initial policy determination of the type reserved for the political branches of government … and would potentially undermine the political branches’ strategic choices.” That is, it also asked, at what cost?
Here the court is invoking the political question doctrine, one of two rationales cited on August 31 by the U.S. District Court for the Southern District of Mississippi which threw out a class action lawsuit essentially blaming 26 energy companies for Hurricane Katrina.
Like the San Francisco court, the court in Biloxi also dismissed Ned Comer, et al. v. Murphy Oil USA Inc., et al., on the grounds that the plaintiffs identified no “standing” to sue (the opposite of what SCOTUS found for parties also lacking in such status, but here the court also articulated a distinction in the nature of their complaints to deny standing; in truth both groups’ claims to unique and actual harm are risible).
It is key to have yet another court saying this on the heels of the Katrina class action, yet completely at odds with the Vermont federal court’s ruling late last week that the California court seemingly had waited on to issue its opinion, indicating it a possible intention to defer to those proceedings. Recall that “In considering a Rule 12(b)(6) motion, the Court accepts the plaintiff’s material allegations in the complaint as true and construes them in the light most favorable to the plaintiff” – that is, this ruling is made while accepting California’s claims that cars have caused part of observed climate changes.
Most surprising is how such commonsense assertions persist in the judicial realm on the heels of Mass v EPA, an absurd opinion cited 13 times by the court in San Francisco but which was only made possible by poor a) strategy and b) oral argument (no one spoke up to support Scalia’s inquiry about a linear relationship between marginal reductions in global CO2 emissions and alleged impact, in response to Breyer’s fantastic statement that a 2% reduction would “save 2% of Massachusetts’s coastline”).
So, all remains on hold as these things wind their respective ways through the courts – hopefully with some support from EPA which now has more reason than ever to inform the Court that they elect not to regulate CO2 because the notion of some exaggerated 20th century warming trend has been debunked.