Laurence H. Tribe

Take it to climate court?

Global warming lawsuits are a misuse of the judiciary branch

By Laurence H. Tribe
April 16, 2011

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ON TUESDAY, the Supreme Court will hear oral arguments in a new kind of lawsuit: one that asks the federal courts to wade into the global warming debate and legislate a policy solution. The lawsuit focuses on the complex process by which greenhouse gases released over the centuries — including man-made as well as naturally occurring carbon dioxide, among many other chemicals — have trapped solar energy in the atmosphere. This lawsuit singles out a handful of domestic electric power companies as defendants and seeks a judicially imposed cap on their emissions.

There have been similar suits in lower courts. One of the more colorful cases was filed by a native Alaskan village with a population of 400 suing two dozen utility, energy, and oil companies for $400 million in damages to compensate the villagers for the harms resulting from thinning sea ice that they say was caused by global warming. Another was filed by owners of land on the Gulf coast suing energy companies whose carbon emissions the owners say contributed to climate change that made Hurricane Katrina more intense and damaging than it would otherwise have been.

How should someone who agrees that national and international action is required in order to reverse the effects of human contributions to global warming, and someone who favors energetic judicial action to cope with human rights abuses, respond to these efforts to enlist the judiciary in the campaign to combat climate change?

As a scholar who belongs to both camps — someone who is neither a doubter when it comes to humanity’s role in exacerbating global warming, nor a shrinking violet when it comes to the judicial role in extending human rights to new frontiers — I might be expected to welcome these climate change lawsuits. Far from it. These suits — including the one the Supreme Court is taking up — represent a profoundly dangerous perversion of the judicial process and would likely retard efforts to grapple with climate change and the threats it poses to human civilization.

Congress, through the Clean Air Act and other measures, has empowered the Environmental Protection Agency to regulate greenhouse gases, and that agency has begun to do so, prodded by a Supreme Court ruling in favor of Massachusetts when the state sued the EPA to compel it to take up the problem. The courts should reject the political and administrative roles that would be thrust upon them by litigants dissatisfied with Congress’s decision to entrust the EPA with this challenging mission — or by those dissatisfied with the efforts of the president and the State Department to engage in the international diplomacy required to cope with an obviously international problem.

Climate change litigation is fundamentally different from the usual types of environmental cases heard by courts. All of us are potential plaintiffs because we are all affected by climate change, and all of us are potential defendants because we all contribute to it.

A climate change lawsuit is not like a suit in which someone seeks relief on grounds that a polluter has emitted a harmful substance that has traveled to the plaintiff’s property and caused a “nuisance.’’ In such a suit, a judge and jury can rely on established community standards to decide whether the harm the polluter is causing outweighs the economic and other benefits of the polluter’s activities.

The very different theory advanced by plaintiffs in next week’s case is that the carbon dioxide emitted by the defendants mixes with similar emissions from virtually every car, building, and utility on the planet, thereby contributing to the total stock of greenhouse gases in the world’s atmosphere — and that a judge and jury can somehow decide what would represent a wise reduction in the carbon footprint of any given collection of defendants in light of their fair “share’’ of solving the overall problem.

The determination of which economic sectors should reduce their carbon footprint and by what amount, as well as how the burden of those changes should be allocated within each sector, would entail uniquely complex tradeoffs, especially when one considers that any steps the United States takes might be counterproductive unless they are coordinated with steps we can induce other nations to take. If ever there was a task ill-suited to the institutional capacities of the federal or state judiciary, this is it.

The inherently limited power and influence of the judicial branch must be preserved for the elaboration of constitutional and statutory texts and legal principles, the protection of politically vulnerable groups and unpopular rights, and the preservation of the structural boundaries of our legal system. That power and influence are squandered when courts are asked to serve as political agents and as social and scientific engineers.

Laurence H. Tribe is a professor of constitutional law at Harvard Law School. He advised parties objecting to the case currently pending in the Supreme Court, but the views expressed here are his own.