Tuesday, April 19, 2011
Oral argument has now been heard in the case of AEP v. Connecticut, with insightful initial reports out from Legal Planet and SCOTUSBlog. Meanwhile, I’ve been having some thoughts about why the notion that climate change is a nuisance may not be particularly convincing to the justices of the Supreme Court or many other Americans for that matter.
Of course, the Supreme Court did not spend its time this morning hearing argument about whether or not climate change is a nuisance. As I discussed previously, the questions presented were threshold questions: plaintiffs' standing to sue, statutory preemption of plaintiffs’ common law claims, and the application of the political question doctrine. But we all know that a judge’s views on the merits may influence her views on procedural issues.
A public nuisance is, as I teach my students, an "unreasonable interference with a right common to the general public." Plaintiffs’ argument on the merits is essentially that the emissions from the nation’s largest powerplants interfere unreasonably with the public’s right to climate stability. But is this the day-to-day experience of Americans? Isn’t our day-to-day experience instead that these emissions contribute in a positive way to the types of climate stability that we are most aware of? These emissions enable our climate-controlled homes and offices. They enable us to live and work comfortably on bone-chilling winter days and scorching-hot summer days. Emissions from energy use also enable us to transport ourselves from place to place with little awareness of terrain, weather, distance, or changes in altitude. We buy more-than-plenty food at the grocery store regardless of soil quality, rainfall, and other climate-related growing conditions.
So, here is an irony: climate change is caused by climate-control and other energy-intensive practices that allow us to ignore changes in climate. Our energy use makes us disconnected from the climate and keeps us from recognizing the critical importance of climate stability. In other words, our energy use prevents us from seeing just how great a nuisance climate change actually is.
- Lesley McAllister