At a time when the international community is holding climate
change conferences and Congress debates on cap-and-trade, new fuel
standards, and subsidies for “green” companies, some still feel
that political solutions to global warming are not moving fast
enough. In the present case, a group of eight states and New York
City sued several public utilities companies, alleging that their
carbon dioxide emissions contribute to global warming. This is the
third major lawsuit to push global warming into the courts (another
being Comer v. Murphy Oil USA, in which Cato also filed a
brief). All of these suits try to use the common law doctrine
of nuisance — the same thing that lets you sue your neighbor
if his contaminated water flows onto your land and kills your lawn
— to attack carbon emitters. Cato’s brief argues that the
chain of causation between the utility companies’ carbon emissions
and the alleged harm caused by global warming is so attenuated that
it resembles the famed “butterfly effect.” Just as butterflies
should not be sued for causing monsoons, six utility companies in
the Northeastern United States should not be sued for the complex
(and disputed) harms of global warming. In legal terms, the
plaintiffs here lack standing to bring such claims. Second, we
contend that, even if causation is demonstrable, it is
unconstitutional for courts to make complex policy decisions that
should be left to the legislature — and this is true
regardless of the science regarding global warming. Just as it’s
unconstitutional for a legislature to pass a statute punishing a
particular person (bill of attainder), it’s unconstitutional
— under the “political question doctrine” — for courts
to determine wide-ranging policies in which numerous considerations
must be weighed against each other in anything but a bilateral way.
Nevertheless, the Second Circuit allowed the suit to proceed
because the plaintiffs did not ask the court “to fashion a
comprehensive and far-reaching solution to global climate change.”
We point out that resolving this case while avoiding those
comprehensive and far-reaching implications is impossible and that
the Constitution prohibits the judicial usurpation of roles
assigned to the other, co-equal branches of government.
