The Judiciary's Role in Protecting Clean Air

It's been a good couple of weeks for the clean air advocates.

First the federal appeals court in New York decided that a group of states and others could bring a nuisance case seeking to require the country's largest global warming polluters to reduce their emissions. Soon after Environmental Protection Agency Administrator Lisa Jackson declared an end to "business as usual" as she announced the Obama administration plans to issue regulations to force large power plant and factory operators to track and report  greenhouse gas emissions for the first time.

Taken together, these developments constitute important steps in the battle to reduce global warming pollution. Granted, neither victory is conclusive and major legal battles probably still lie ahead on both fronts. But both are signs of a shift in the debate.

The Sept. 22nd federal appeals court ruling is especially gratifying. In my former role as the head of the as Environmental Protection Bureau of the New York State Attorney General's Office, I was a lead litigator in the successful effort by eight states and several land trusts to sue American Electric Power Company and four other large electric power companies. These companies, which together own dozens of power plants throughout the United States, jointly emit 650 million tons of carbon dioxide pollution each year-as much as all of Canada emits.
The ruling that the states can, in fact, bring legal action against each company as a public nuisance is extremely important and upholds a long tradition of judicial protection for the environment.

In a 1906 ruling known as Missouri v. Illinois, for example, the Supreme Court -- long before Congress or state legislatures limited water pollution as they do now -- allowed Missouri to sue Illinois for dumping raw sewage into the Mississippi River, threatening the St. Louis drinking water supply. The Court held that, under our Constitution, "if the health and comfort of the inhabitants of a state are threatened ... it was to be expected that upon the [federal courts] would be devolved the duty of providing a remedy."

And one year later, Justice Oliver Wendell Holmes -- often held up as one of the lions of judicial conservativism -- not only allowed Georgia to sue polluters in Tennessee (Georgia v Tennessee Copper Co.) for "sulphurous fumes" wafting across the border, but imposed precise pollution limits on the upwind copper smelter.
He built upon one of the most profound principles of our Union: that states cannot wage economic or other war against other states. That core concept, which has pulled together the 50 states into one country for more than 200 years, came with the need for the federal government, including the courts, to solve inter-state disputes. "When the states by their union made the forcible abatement of outside nuisances impossible to each ... they did not renounce the possibility of making reasonable demands [to protect] their quasi-sovereign interests ... in this court."
As Justice Holmes recognized, peaceful resolution of disputes by the courts is not a radical or liberal notion; it is a core part of America.

In the American Electric Power case, the power companies argued that any court ruling would be tantamount to re-ordering all U.S. economic activity by imposing broad new limits on carbon dioxide.
Just as had courts before it, this appeals panel saw the difference: "Nowhere ... do Plaintiffs ask the court to fashion a comprehensive and far-reaching solution to global climate change, a task that arguably falls within the purview of the political branches. Instead they seek to limit emissions from six domestic coal-fired electricity plants."
The court closed by quoting a 1981 Supreme Court decision (City of Milwaukee v Illinois) that allowed Illinois to sue Milwaukee for dumping sewage into Lake Michigan and threatening its drinking water because no federal law clearly prohibited such pollution: "It may happen that new federal laws ... may in time pre-empt the field of the federal common law of nuisance. But until that comes to pass, federal courts will be empowered to appraise the equities of the suits alleging creation of a public nuisance" by pollution.
Last week, the federal court did its job -- moving forward to resolve the dispute before it peacefully. The court noted that it is Congress's job to develop a comprehensive solution to global warming. Rather than criticizing the courts for doing what the Constitution empowers and expects them to do, we should all work together to get Congress to do what the Constitution empowers and expect it to do -- enact a comprehensive solution to global warming.