A lawsuit by six states and New York City seeks to force major power companies to reduce greenhouse gas emissions
No one questioned the basic premise of the suit — that greenhouse gas emissions contribute to global warming. But there was essentially no support for the states’ position that courts are the proper forums in which to regulate the problem.
“Asking a court to set standards for emissions sounds like the kind of thing that E.P.A. does,” Justice Ginsburg said. “The relief you’re seeking seems to me to set up a district judge, who does not have the resources, the expertise, as a kind of super-E.P.A.”
“Do we ignore the fact that the E.P.A. is there and that it is regulating in this area?” she asked.
The New York solicitor general, Barbara D. Underwood, acknowledged that “this is a very peculiar moment in time for this case to arrive in this court.” But she said the Supreme Court should not block the suit until promised regulations from the federal agency are actually in place.
“A lot can happen to delay or derail the fulfillment of a promise,” Ms. Underwood said, perhaps referring to the political controversy surrounding such regulations.
When the lawsuit was filed in 2004, the E.P.A. under the Bush administration took the view that the Clean Air Act did not permit it to issue regulations addressing climate change and that it would be unwise to do so in any event.
The suit said the courts should step in to protect the states from a “public nuisance” created by the defendants, five power companies collectively responsible for a quarter of carbon-dioxide emissions by utilities in the nation. Judge Loretta A. Preska of Federal District Court in Manhattan dismissed the suit, saying the “balancing of economic, environmental, foreign policy and national security interests involved” was a task “consigned to the political branches, not the judiciary.”
In 2009, more than three years after an appeal from Judge Preska’s decision was argued, a two-judge panel of the United States Court of Appeals for the Second Circuit, in New York, reversed her decision and allowed the case to proceed.
The panel originally included Judge Sonia Sotomayor, but the decision was not issued until after her elevation to the Supreme Court. Justice Sotomayor has recused herself from the case at the Supreme Court.
Since the suit was filed, the legal and political landscapes have changed. In 2007, the Supreme Court ruled that the E.P.A. had the authority to regulate some emissions and was required to do so unless it had a scientific basis for its refusal. In the wake of that decision and after a change in administrations, the agency has issued regulations concerning emissions from cars and is at work on others.
Neal K. Katyal, the acting United States solicitor general, argued in support of the defendants.
“In the 222 years that this court has been sitting, it has never heard a case with so many potential perpetrators and so many potential victims,” he said.
Chief Justice John G. Roberts Jr. later asked Ms. Underwood for a counterexample, but she could not supply one.
Justice Elena Kagan questioned the plaintiff’s “public nuisance” theory, one sometimes used to stop, say, utilities from dumping pollution into rivers.
“One factory emitting discharge into one stream,” Justice Kagan said of such suits. “They don’t involve these kinds of national, international policy issues of the kind that this case does. I mean, there’s a huge gap, a chasm between the precedents you have and this case, isn’t there?”
Ms. Underwood resisted, but not very much. “I don’t know if I would call it a chasm,” she said, “but there’s a large distance between them.”
Peter D. Keisler, representing the defendants, said the theory behind the lawsuit was flawed.
“To classify climate change as a tort,” Mr. Keisler said, “would trigger a massive shift of institutional authority away from the politically accountable branches and to the courts, which we think would be inconsistent with separation of powers.”
Ms. Underwood countered that at least one branch of the government had to be ready to act.
“We urge this court,” she said, “to keep the federal courts open to states exercising their historic power to protect their land and their citizens from air pollution emitted in other states.”
But Chief Justice Roberts seemed to capture his colleagues’ mood in sketching out his own hesitation about the suit.
“The whole problem of dealing with global warming is that there are costs and benefits on both sides, and you have to determine how much you want to readjust the world economy,” he said. “That’s a pretty big burden to impose on a district court judge.”