The Volokh Conspiracy

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Climate Change

Overheated and Inaccurate Commentary on Courts and Climate

Demand Justice's Balls and Strikes provides more heat than light.


Earlier this year the folks at Demand Justice, a progressive "dark money" group created to help shift the courts left by almost any means necessary, launched "Balls and Strikes," a website providing court commentary premised on the idea that "interpreting the law is an inherently political act with real-world consequences," and bearing them motto: "Making Sam Alito Mad since 2021."

Yesterday Balls and Strikes published a commentary by Alda Yuan titled "Courts Are Making the Climate Crisis Worse," arguing that we should blame courts, and the Supreme Court in particular, for the lack of action on climate change. Writes Yuan: "For decades, the 'least dangerous branch' has wielded its considerable power to shield from responsibility the corporate giants that would rather consign the planet to a fiery doom than find a different way to pay for mega-yachts." Whatever one thinks of the premise, the article is a mess of overheated rhetoric, misleading claims, and inaccuracies.

The following paragraph is illustrative:

The Supreme Court's enabling of the corporate interests driving climate change predates this particular group of justices. In 2011, a unanimous Court—minus Sotomayor, who was recused after hearing the case below—ruled in American Electric Power Company v. Connecticut that a lawsuit brought by eight states, New York City, and several environmental groups against greenhouse gas-emitting power companies could not go forward. Although the Court finally ruled in 2007 that the Clean Air Act permits the Environmental Protection Agency to regulate greenhouse gases, the EPA had yet to formally do so. Meanwhile, rather than continue to wait around as the air got worse, the states filed a lawsuit alleging that the emissions were a "public nuisance"—at common law, an injury that affects the public at large, not an individual or a discrete  group. Since the harms of climate change fall generally—though not necessarily equally—upon society, courts could have used public nuisance law as a sensible, interim alternative in order to hold polluters accountable.

Where to begin?

According to this narrative, a prior group of justices began "enabling . . . corporate interests" a decade ago in AEP v. Connecticut. Although the article notes the case was unanimous, it curiously omits that the decision was written by Justice Ruth Bader Ginsburg, was joined by four justices who are still on the Court (Thomas, Breyer, Alito, and the Chief), and adopted the position urged by the Obama Administration.

What the article also omits is that the AEP decision was a direct and predicted consequence of the later-mentioned (and unnamed) decision the Court "finally" issued in 2007: Massachusetts v. EPA. As I explained in this article, it was well understood that a court ruling that Congress had authorized federal regulation of greenhouse gases under the Clean Air Act would displace federal common law interstate nuisance claims under longstanding Supreme Court precedent. In other words, the climate claims lost in AEP because they prevailed in Massachusetts v. EPA.

The larger omission here is that the only reason there is any EPA regulation of greenhouse gases at all is because of that 2007 decision–what some have called the most important environmental decision of the past twenty-five years, if not all time. In Massachusetts v. EPA, the Court held that states have standing to sue for climate-related harms and that the EPA may regulate greenhouse gases under the Clean Air Act. All subsequent EPA regulation of greenhouse gas emissions is a consequence of this decision, as is much subsequent climate litigation, which was enabled by the standing ruling).

In reaching this conclusion the Court rejected the view adopted by the executive branch and (also omitted from the article) laid the groundwork for courts to have jurisdiction to hear subsequent climate claims, including those raised in AEP. In other words, if you like federal greenhouse gas regulation and litigation, you should be thanking the courts, not condemning them.

The article also gets some basic facts wrong. For instance, it claims the EPA had failed to regulate greenhouse gases when AEP was decided. This is false. The EPA made a formal endangerment finding triggering the regulation of greenhouse gases under the Clean Air Act in 2009, and promulgated its first GHG regulations in 2010.  "Meanwhile," the article claims, the states filed suit "rather than continue to wait around as the air got worse," but the states actually filed suit in AEP in 2004. (And, if you want to know why it took so long for that case to reach the Supreme Court, well, you might want to ask Justice Sotomayor.)

While the article tries to place the blame for the slow adoption of climate regulation on the courts, complaining about decisions like the Ninth Circuit's Juliana v. United States ruling, the real culprit is Congress. Massachusetts v. EPA notwithstanding, Congress has never expressly authorized the regulation of greenhouse gas emissions (thought that may change this year). And if one is concerned about the pace of climate policy, one could further criticize Congress (and the executive branch) for avoiding direct measures that could produce emission reductions more quickly than regulations, such as a carbon tax. What is simply bizarre is to try and blame the lack of such measures on the courts.

None of this is to say there are not things to complain about when it comes to court decisions concerning climate change. I have been quite critical of Massachusetts v. EPA (for misinterpreting the Clean Air Act and, in effect, doing the legislature's job) and I have a forthcoming paper (soon to be posted on SSRN) explaining why the U.S. Court of Appeals for the Second Circuit was wrong to conclude that state-law-based nuisance claims against fossil fuel producers are preempted.

Perhaps it is too much to expect fair-minded and accurate critiques from Demand Justice. So be it. But if one is truly concerned about climate change (as I believe one should be), the focus should be on Capitol Hill, more than the courts.