The “Good” and the “Ugly” Implications of SCOTUS’s Climate Change Ruling

June 21, 2011

The U.S. Supreme Court blocked a lawsuit yesterday aimed at reducing greenhouse gas emissions, holding that because the power to regulate emissions had been delegated to the Environmental Protection Agency under the Clean Air Act, federal common law did not apply.

Although the ruling limited the threat of tort liability, there are some positive implications for U.S. climate policy, writes Yale Law Professor Douglas Kysar in Nature. But along with the good comes not just the “bad” but the “downright ugly,” Kysar writes.

The “good” is that the opinion “solidified the court's landmark 2007 conclusion that the EPA has the power to regulate carbon dioxide as a pollutant.” This means that if Congress attempts to limit the EPA’s power in this area, these lawsuits could be reinstated, he explains. The court also left open state common law as an avenue for pursuing such suits.

The “bad” is that lawsuits under federal common law are foreclosed even if the EPA never exercises its power to regulate, so long as that power is not explicitly repealed by Congress.

And in the category of “downright ugly,” is the opinion’s overt skepticism about the science of climate change, Kysar writes, which likely influenced their decision in this case. The opinion suggests readers explore “views opposing the EPA” by reading a profile of Freeman Dyson, “the theoretical physicist whose controversial views on climate change have been widely promoted by the climate-skeptic community.”

He continues:

The court also repeated a prominent skeptical refrain about the ubiquity and supposed banality of greenhouse-gas emissions — "after all, we each emit carbon dioxide merely by breathing" — that serves only to downplay the severity and significance of industrial emissions.

That the nation's highest court would repeat this misleading refrain, and seemingly endorse Dyson's views as equal to those of the IPCC [Intergovernmental Panel on Climate Change]and the EPA, simply takes the breath away. 

Read the full article here, and read Kysar’s previous commentary for ACSblog on AEP v. Connecticut here and here.