Tuesday the Supreme Court heard oral argument in American Electric Power Co. v. Connecticut. In the case, six states and several other plaintiffs claimed that the nation’s five largest greenhouse gas polluters were contributing to a nuisance and that the court should order them to reduce the emissions.
Judging from yesterday’s argument, it looks like the polluters are playing a game of three card monte.
Polluters say—as they did in yesterday in the Supreme Court—that court should not regulate greenhouse gas emissions because the EPA is already starting to do it. But then polluters fight to make sure Congress prevents the EPA from actually doing anything, as witnessed by the Upton-Inhofe bill that recently sailed through the House, but ran aground—for now at least—in the Senate.
Polluters’ allies in Congress say the EPA should not set limits on greenhouse gases, because that’s a job for Congress to do. But then Congress refuses to act.
The courts, meanwhile, say they recognize that they should not act if Congress or the EPA does. But of course neither of those two branches has done anything regarding these five polluters.
The polluters also seemed to have persuaded several of the judges that they couldn’t afford to make the air cleaner and safer.
Justice Roberts kept saying yesterday that courts can’t weigh costs. “The whole problem of dealing with global warming is that there are costs and benefits on both sides, and you have to determine how much you want to readjust the world economy,” he said.
The truth is that polluters routinely overestimate how much it will cost to comply with public health standards.
When large cuts in sulfur dioxide were adopted in the 1990 Clean Air Act, power plant owners claimed it would cost $1,500 per ton to meet the standard. In reality, it is costing only about a quarter of those claims.
When the Clean Air Act removed lead from gasoline, refiners said it would cost $1 per gallon to comply. In fact, it could less than a penny.
The past 40 years have taught us time and again that once polluters are told to clean up their practices, they innovate and find cheaper ways of getting the job done.
Yet Justice Roberts focused on potential increases in electricity costs if power plants reduced their pollution.
New York Solicitor General, Barbara D. Underwood, arguing for the plaintiffs, said the plants could start with low or no-cost measures, but Justice Scalia said finding them would be “implausible.”
Those more familiar with the utility sector know that with energy efficiency programs and other options such as fuel switching, reducing pollution at little or no cost is entirely possible.
Indeed, other companies pollute less per kWh than the five companies involved in the case. The Court could easily say that these polluters must do as well as their competitors.
I have been involved in this case for years. As New York State’s Assistant Attorney General in charge of the Environmental Protection Bureau, I argued the case unsuccessfully at the district court and successfully in the court of appeals. NRDC has also help represent the land trust plaintiffs.
t is disappointing to see that so many years later, Congress has not set limits on greenhouse gases and is moving to block the EPA from doing anything as well. Now the courts seem to be inclined to keep shuffling the issue back into the polluters’ game of three card monte.