The Supreme Court’s decision in American Electric Power v. Connecticut strongly limits private nuisance actions against greenhouse gas (GHG) emitters by keeping these cases out of federal court....
Starting a Fire
Utilities cut support for climate-change deniers.
This summer marked the 40th anniversary of a pivotal event in the environmental movement. On June 22, 1969, the oily surface of the Cuyahoga River caught fire, drawing national attention to the plight of America’s lakes and rivers.
It wasn’t the first time the Cuyahoga caught fire, but the timing of the blaze—two years after the summer of love, in the middle of the Vietnam War, and just a few months into President Richard Nixon’s first term—turned the Cuyahoga fire into a catalyst for change. It galvanized public opinion on environmental issues, inspired Nixon to propose the Environmental Protection Agency (EPA) in 1970, and drove Congress to enact the Clean Water Act in 1972.
However, clean water standards didn’t begin with the Cuyahoga River fire, the EPA or the Clean Water Act. A series of common-law nuisance lawsuits, combined with a patchwork of state laws and (weak) federal statutes, preceded the comprehensive legislation that emerged from the smoke of the Cuyahoga.
Today we’re seeing a similar progression in greenhouse gas (GHG) regulation, with civil suits, state initiatives and marginal federal actions apparently marching toward a national climate policy. Most recently, on September 21 the 2nd Circuit Court of appeals granted standing to a group of states in Connecticut v. AEP , and said the trial court should hear the case to determine whether GHGs represent a public nuisance under common law. The following day, the EPA finalized its rules requiring large emitters of GHGs to measure and report their emissions—a clear precursor to federal regulation, whether promulgated by Congress or EPA, or through a court ruling.
Nevertheless, public opinion remains decidedly lukewarm on the issue. Opinion polls consistently put climate change near the bottom of citizens’ priorities, right below same-sex marriage and right above stem-cell research. And during the past year people have become increasingly jaded about climate change. A Gallup poll in August reported that 41 percent of respondents said climate change risks were exaggerated—up from 35 percent last year. Nearly 60 percent of respondents to a Bloomberg poll in September said they consider climate change to be either a minor threat or no real threat.
As a result, GHG regulation poses a risky proposition for elected officials—especially now, with the economy in its current fragile state, and with mid-term elections scheduled for one year from now. Without an in-your-face object lesson like the Cuyahoga River fire, and with lobbyists spreading doubt about climate science, the public never will give lawmakers a mandate to enact comprehensive legislation. The industry and its investors are caught in the middle, understanding that green energy investments are needed to address climate change, but powerless to act without clear direction from the government.
What we need is a good fire.
Regulating by Degrees
After sitting on the back burner all summer, energy policy legislation is starting to move forward in Congress. Specifically, Sen. Barbara Boxer (D-Calif.) and Sen. John Kerry (D-Mass.) are circulating a