This case is novel, and far more aggressive and disruptive than the global warming case the Court previously permitted. In a 2007 decision, Massachusetts v. EPA, a closely divided Court agreed with 12 states and several cities that the Environmental Protection Agency has authority to regulate carbon dioxide as a pollutant under the Clean Air Act. Though that case dealt with a narrow claim to enforce a federal statute, the Court’s decision emboldened what had already become a cottage industry of lawsuits designed to slow global warming by asking federal courts to enact what interest groups have been unable to secure through the democratic process: carbon caps and other limits on the way energy is produced in this country.
Under the guise of “public nuisance,” the plaintiffs in these suits seek to impose enormous damages and binding emissions caps on energy companies. The plaintiffs have acknowledged that their goal is a veritable sea change in the way energy is produced, sold, and used in this country. Incredibly, they assert that these companies can make major changes to lower emissions – such as the adoption of wind and solar alternatives – “without significantly increasing the cost of electricity.” But never before has the “public nuisance” doctrine been used to set national economic and energy policy. While litigation may be therapeutic for those frustrated by political inaction, this case is at odds with this country’s legal tradition.