Tuesday, April 19, 2011

What a Nuisance: Climate Change and Climate Control

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


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Thanks so much for your comment. I agree that it would be interesting to quantify the amount of emissions related to climate controlled spaces. I would count car-time. I'll speak for myself in saying that when I drive, I tend to be particularly oblivious to the natural environment and changes therein. Sure, I notice if it's raining or blazingly hot, but it doesn't change much of anything that I do. If I didn't have that climate-controlled car, I'd pay a lot more attention to the climate!

Posted by: Lesley | Apr 21, 2011 10:38:41 AM

Interesting notion, but I think it's a little overreaching. Sure, some of the energy/electricity we use allows us to escape the realities of the climate outside, but I'd be willing to guess that percentage is a fairly small amount of overall energy consumption. Emissions contributing positively to climate change is only worthwhile if you plan on spending the rest of your life indoors. That is an idea I hope most people reject, though I'm sure there are plenty out there who are fine turning up/down the thermostat instead of worrying about the underlying causes of climate change.

Posted by: LVP | Apr 19, 2011 11:43:16 PM

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