Wednesday, June 22, 2011

Talking Climate Change in Light of AEP

Supreme Court's ruling this week in American Electric Power v. Connecticut raises a myriad of questions about the best way forward for those interested in reigning in the United States' greenhouse gas emissions.  

A number of strategies worth thinking about have been floated in the blogosphere over the past couple days.  The initial reaction of many is that AEP leaves untouched a number of alternative claims that still could be brought, particularly state common law public nuisance claims.  Others focused on how the implications of this case might play out at EPA or in Congress.  While there is a lot out this week on this case worth reading (and certainly still more to come), here are some the most interesting first impressions I have ran across so far:  Doug Kysar's commentary for along with Jason Czarnezki response to Doug on Jason's blog; Hari Osfsky's post on this blog and cross posted elsewhere; and Dan Farber's post on Legal Planet with a very interesting response from J.B. Ruhl in the comments section of Dan's post.

With all that has already been said, let me comment on an aspect of the problem that I have not seen discussed much this week: the increased importance of winning over the  general public.  While there's still are some avenues litigants can pursue court to address climate change, AEP reduced the number of options and, in my opinion, the probability that courts will  end up addressing climate change in a meaningful way in the foreseeable future.  Rather, it seems likely that if we are to make progress, the forum will likely be Congress or EPA or both.  Of course, public opinion will in large part determine the fate of those efforts. 

Very often when I come across discussions about public opinion on climate change, the American public is divided into two:  the believers and the skeptics.  It turns out that this way of framing the challenge is not only an oversimplification but also an inaccurate caricature of reality.  A couple years ago co-authors from the Yale School of Forestry and George Mason University released a report titled Global Warming's Six Americas 2009: An Audience Segmentation Analysis.  This report included a number of interesting insights.  Perhaps most surprising to me was a small number of people who the authors identified as either doubtful (11%) or dismissive (7%) with regards to the threats presented by climate change.  The report also highlighted a large number of people were on the fence on this issue--labeled in he report as those who were either cautious (19%) or disengaged (12%) with the issue. I also found it reassuring that the authors identified more than 50% of respondents were those who believed climate change is a serious issue--labeled in the report as those who are alarmed (18%) or concerned (33%).  While the last minute of the following video morphs into an infomercial the Yale School of Forestry, the first few minutes  provide a nice summary of the reports major findings.  I I believe that if we are going to get the law right on this issue, it is going to take much more thinking along these lines.

-- Brigham Daniels

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