Sunday, July 17, 2005

Trying to close the courts to any lawsuit over global warming

I'm going to break tradition here at Backseat Driving and write about a field where I have actual expertise - environmental law.

Last week the D.C. Circuit Court of Appeal ruled in Commonwealth of Massachussetts v. Environmental Protection Agency that the EPA had the right to refuse to regulate greenhouse gas emissions, without analyzing whether the agency was legally obligated NOT to regulate greenhouse gases. The decision is here; Chris Mooney has a great discussion of the science issues here; a news writeup is here; environmental law professor Susan Smith summarizes the case here.

The issue I want to focus on is the standing argument by Judge Sentelle. "Standing" is a restriction on court access that requires, among other things, that an injury a plaintiff is suing about must be particularized to that plaintiff, not a general grievance against government that should instead be addressed through the political process. Standing is a mostly-invented-by-conservatives doctrine found nowhere within the original intent of the Constitution, and used in part to keep people from holding government accountable.

Back to our friend, Judge Sentelle, who says of the arguments that standing exists in this case:

even in the light most favorable to the petitioners,
in the end they come down to this: Emission of certain gases that
the EPA is not regulating may cause an increase in the
temperature of the earth – a phenomenon known as “global
warming.” This is harmful to humanity at large. Petitioners are
or represent segments of humanity at large. This would appear
to me to be neither more nor less than the sort of general harm
eschewed as insufficient to make out an Article III controversy
by the Supreme Court and lower courts.

This is just the opinion of one of the three judges - Judge Tatel disagrees, and Judge Randolph ducks the question. That means Sentelle's opinion is not mandatory to lower courts, but it has persuasive authority for lower courts and other courts. The significance of the argument, however, is that it throws all global warming cases out of the federal courthouse, not just this Clean Air Act case but any other case brought under other laws like the National Environmental Policy Act. And because standing is a constitutional doctrine (for these purposes), it would be somewhere between difficult and impossible for some future, Democrat-controlled Congress to fix the situation with a law giving the right to sue over global warming.

All this for something that is just plain wrong. Judge Tatel makes it clear that the effect of sea level rise to the plaintiff state Massachussetts is different from that experienced by landlocked New Mexico. Many other particularized effects could be described from weather changes, habitat changes, and economic disruptions.

Sentelle's argument is simply that if you do something awful enough to effect nearly everyone in a variety of ways, then the courts offer society no protection. Hopefully that argument will get tossed out of the courts as "unpersuasive" authority, in the near future.

global warming, law

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