July 30, 2012
Schwartz, Goldberg & Appel on Climate Change Litigation
A recent article by Victor E. Schwartz, Phil Goldberg & Chris E. Appel addresses whether the judiciary is empowered to hear climate change litigation cases: Schwartz, Goldberg & Appel, Does the Judiciary Have the Tools for Regulating Greenhouse Gas Emissions?, 46 Val. U. L. Rev. 369 (2012).
From the authors:
Our article takes on the plaintiffs’ three main arguments: (1) because the Supreme Court only held that the Clean Air Act only barred federal common law claims, the same suits could proceed under state tort law; (2) AEP, where the plaintiffs sought injunctive relief and abatement, does not control cases such as Kivalina that seek monetary damages for alleged climate change harm; and (3) that AEP endorsed the notion that all individuals, including state attorneys general, have standing to bring climate change tort claims against private individuals, including private businesses.
As we explain in the article, in addition to its displacement holding, the Supreme Court went to significant lengths to express the practical and institutional reasons the judiciary should not be empowered to regulate GHG emissions. For example, the unanimous Court cautioned that setting GHG emission limits “is undoubtedly an area ‘within nationallegislative power.’” It stated that the judiciary, given its limited tools, does not have the institutional competence to determine “[t]he appropriate amount of regulation” for sources of carbon dioxide and engage in the “complex balancing” needed to assess the impact such a decision would have on the “energy needs” of the American people. As Justice Ginsburg said in oral argument, it is inappropriate to “set up a district judge . . . as a kind of super EPA.”
In addition to applying AEP to Kivalina and other types of potential climate change tort cases, the article also places the regulation of GHGs within the historical, multi-faceted development of U.S. energy policy and discusses the public policy consequences of permitting the judiciary to regulate GHG emissions through tort litigation.
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