January 2012

Yesterday, in State of Connecticut et al. v. American Electric Power et al., the 2nd U.S. Court of Appeals decided that states and other plaintiffs have the right to sue five electric utilities – American Electric Power, Cinergy, Southern Co., Excel Energy, and the Tennessey Valley Authority – for creating a ”public nuisance” by emitting CO2 and, thus, contributing to global warming.

With regard to American Electric Power (AEP) and Cinergy, I am tempted to say, it couldn’t happen to a nicer bunch of guys. These utilities for years have lobbied for carbon cap-and-trade schemes. Instead of opposing climate alarmism, they have helped promote it. Boys, you reap what you sow!  How are you going to deny plaintiffs’ allegations that your CO2 emissions are a public nuisance, when you have repeatedly stated on the record that man-made global warming is a big, big problem?

In the 139-page decision, Judges Joseph McClaughlin and Peter Hall (appointed by Presidents George H.W. Bush and George W. Bush respectively) rejected the lower court’s opinion (and the utilities’ argument) that the relief sought by plaintiffs — a gradually decreasing cap on the utilities’ CO2 emissions — raised “non-justificiable political questions.”

In a sane universe, the Appelate Court would have upheld the lower court’s decision. Energy policy is manifestly a political question — perhaps the most politicized issue to come down the pike in decades. If courts and litigators can dictate energy policy (actually, anti-energy policy) to the nation, then constitutional self-government is at an end.

The Court held that granting plaintiffs’ proposed remedy would not “decide overarching policy questions such as whether other industries or emission sources not before the court must also reduce emissions or determine how across-the board emissions reductions would affect the economy and national security.” Rather, the Court said, granting the remedy sought would only require the lower court to “resolve the particular nuisance issue before it” involving just the five utilities in the case (p. 30).

Who do Judges McClaughlin and Hall think they’re fooling? If plaintiffs sue the utilities and win, the precedent they establish would have enormous policy consequences. That’s the whole point. Setting the precedent for additional “public nuisance” litigation to restructure energy markets and the economy is what the case is all about.

Nobody seriously believes that capping the five utilites’ emissions would in itself provide any measurable relief from climate change, or any damages allegedly resulting from climate change. The litigation is either political grandstanding  and ambulance chasing, or it is designed to set the stage for a broader, policy-changing, litigation campaign. 

Once a court actually determines that CO2 emissions are a public nuisance, the same plaintiffs — or others — could argue that nothing less than eliminating AEP and Cinergy’s emissions is adequate to avoid dangerous “tipping points” and reduce “injuries” to the public (p. 8). Logically, if lower emissions is better, zero emissions is best.

Surely there is no shortage of eco-litigation groups willing to press the legal logic as far as it will go. The Center for Biological Diversity, for example, leads a coalition calling itself 350 or Bust. The idea is to use all available legal means to bring atmospheric CO2 concentrations down to 350 parts per million (today’s level is about 387 ppm). Accomplishing that goal would likely require a global depression over many decades. Pardon me if I view the alliance of climate alarmism and judicial activism as one of the biggest public nuisances we face.

It’s easy to suppose that public nuisance litigation will target only major emitters such as coal-burning utilities. But remember, utilities emit CO2 only in the process of serving customers who consume electricity. People powering their factories, lighting their homes, and running their laptops are ultimately to blame for destroying the planet, according to the “science” invoked by plaintiffs. In their worldview, everybody is injuring everybody else. So, shouldn’t everybody have the right sue everybody else?

I am reminded of the South Park Episode, Two Days Before the Day After Tomorrow – a parody of the preachy, global warming, Sci-Fi disaster film, The Day After Tomorrow. 

Stan and Cartman crash a speed boat into the world’s largest beaver dam, flooding the people of Beaverton out of their homes. Later that night, Stan, feeling guilty, asks his parents what’s being done to rescue the flood victims. Stan’s father says that’s not as important as finding out who deserves the blame. Some in South Park accuse George Bush; others accuse Al Qaeda. Stan’s father and other Colorado scientists announce they have found the real culprit: global warming.

Then comes the really bad news: Global warming will strike not the day after tomorrow, as scientists had previously thought, but two days before the day after tomorrow – today! There is panic in the streets, not just in South Park but all around the country. Fearing that global warming will shift the climate into an ice age, Stan’s father dons Arctic weather gear and nearly perishes in the summer heat. 

The Army rescues the Beaverton residents still stranded on their rooftops and ends the global warming panic — but only by blaming the flood on yet another bogeyman: Six-Legged, pincered, “Crab People.” Unable to live with the guilt any longer, Stan confesses to the people of South Park: ”I broke the dam.” One of the adults translates: “Don’t you see what this child is saying … we all broke the dam.” Another adult steps forward and says, “I broke the dam.” Then another and another.

We all emit CO2. We all consume electricity. Even if our utility generates juice from nukes or hydro, we drive CO2-emitting cars and consume goods and services made either directly or indirectly with CO2-emitting fossil energy. According to the “science” underpinning plaintiffs’ lawsuit, we’re all responsible for every damage and harm that anyone can plausibly (or implausibly) blame on global warming — every flood, every eroded beach, every summer dry spell, every tornado, and hurricane, etc. We have met the public nuisance, and it is us!

South Park explains the two-fold appeal of global warming hysteria. First, warmism feeds and legitimizes the desire to punish and blame. It justifies and focuses political indignation. It incites political and legal attack on coal-power plants and oil companies – key sources of our prosperity.

Second, warmism gratifies the need to feel connected to something really big and important, usually on the cheap. It feeds feelings of collective guilt (“we all broke the dam”) while offering a number of easy expiation rituals (“I recyle,” ”I voted for Obama,” “I support cap-and-trade”). 

In light of this, ahem, analysis, we should expect future common law CO2 litigation cases to (a) demand bigger penalties for major emitters and bigger cuts in their CO2 emissions than plaintiffs in State of Connecticut currently demand, and (b) target smaller and smaller entities as public nuisances.