Three leading Republicans in Congress filed a brief with the Supreme Court late Monday asking the justices to overturn a lower court ruling that allowed several states and environmental groups to sue electric utilities over their global warming emissions.
The lawmakers – Senator James Inhofe of Oklahoma and Representatives Fred Upton of Michigan and Ed Whitfield of Kentucky – submitted a 13-page friend of the court brief in the case, American Electric Power v. Connecticut, No. 10-174. The Supreme Court will hear arguments in April in an appeal of a 2009 decisionby the United States Court of Appeals for the Second Circuit, in New York, allowing a suit filed against five utilities by eight states, New York City and three land trusts to proceed.
A lower court had dismissed the suit, calling regulations of emissions a matter to be decided in the political, not legal, system.
The suit, originally brought in 2004, argued that the utilities were creating a public nuisance by burning coal and pouring heat-trapping gases into the atmosphere, adding to the problem of global warming. The states and groups that filed the case considered it an alternative to legislative or regulatory action on climate change, which was then – as now – moving at a snail’s pace.
A number of other business, labor, legal and local government groups have also filed briefs in the case, but the petition from the three Republican lawmakers is novel. The three lawmakers have all expressed skepticism about the reality of human-caused global warming, yet in their brief they say that the political system, not the courts, should deal with the problem.
The three just last week circulated draft legislation that would prevent the Environmental Protection Agency from issuing any regulations on greenhouse gases beyond those already written for vehicles. At the same time, they oppose any comprehensive legislation to deal with climate-altering gases because they say they believe the science is uncertain and the costs of reining in carbon dioxide and other emissions will be too high.
Yet in their brief they say there is no need for judicial intervention because Congress and the administration are already dealing aggressively with the matter.
In this, they take the same position as the Obama administration, which has also argued that the appeals court decision should be overturned because the administration is hard at work on the problem and does not need the courts’ help.
“E.P.A. has already begun taking actions to address carbon-dioxide emissions,” the Obama administration’s acting solicitor general, Neal Katyal, said in a brief last August. “That regulatory approach is preferable to what would result if multiple district courts — acting without the benefit of even the most basic statutory guidance — could use common-law nuisance claims to sit as arbiters of scientific and technology-related disputes and de facto regulators of power plants and other sources of pollution.”
The Republicans agree, to a point. “This case involves political and public policy matters that are being resolved by the legislative and executive branches of government,” the three Republicans wrote in their brief. “These public policy determinations are necessarily within the purview of the Congress and the executive branch, not the judicial branch, because of the complexity and significance of the environmental and economic issues that they raise.”
Mr. Inhofe, the senior Republican on the Senate Environment and Public Works Committee, is the most outspoken climate change skeptic in Congress. Mr. Upton is chairman of the House Energy and Commerce Committee; Mr. Whitfield is chairman of the panel’s subcommittee panel on Energy and Power. Mr. Whitfield’s committee is planning a hearing on Wednesday to grill administration officials about plans to regulate carbon dioxide emissions. Mr. Inhofe is one of the scheduled witnesses.
Their brief lists several actions, from the Clean Air Act in 1963 through recent energy legislation, that show that the political branches of government are acting on the problem of emissions. They say that the government is spending billions of dollars a year in climate change research and mitigation efforts. They note that the United States ratified the United Nations Framework Convention on Climate Change and participates actively in global climate diplomacy. They even note that in 2009 the House passed a sweeping cap and trade bill to control greenhouse gas emissions – legislation that all three of them vigorously opposed.
“No one can seriously question that the executive branch, acting through the E.P.A., the Department of State and various other departments and agencies, has aggressively employed its various statutory authorities in acting on climate change,” they write in their brief.
They go on to say that some of the recent actions by the Obama administration, including its intent to regulate greenhouse gases under the Clean Air Act, “may well exceed the authorities Congress has vested in the executive, and are at a minimum extremely misguided.”
Misguided or not, the brief continues, the issue should be debated and resolved by representatives and officials who are elected or otherwise accountable to the public.
“Climate change issues are extraordinarily complex, both because of the climate science itself and because any proposed solutions to address climate change have enormous domestic, international and economic implications,” they said.
“This case calls for determinations that are not appropriate for judicial discretion,” they add a few pages later. “As such, they raise public policy issues that necessarily should be determined by the Congress and the executive branch precisely because they are so complex and controversial.”
Joseph Mendelson, director of global warming policy at the National Wildlife Federation and a lead lawyer on the last major global warming case to come before the Supreme Court, Massachusetts v. Environmental Protection Agency, No. 05-1120, said that the argument from the three Republicans was “ironic at the least.”
“It’s rather amazing what they’ve done,” he said in an interview. “They’re trying to foreclose action by anybody.”
The Supreme Court is scheduled to hear arguments in the Connecticut case on April 19. Justice Sonia Sotomayor recused herself because she sat on the Second Circuit panel that heard the case, although she did not take part in the ruling.