RUTHFULLY YOURS

How unconvincing is the green legal doctrine of the climate tort? So much so that not a single Justice seemed persuaded when the Supreme Court heard oral arguments last Tuesday—even some of the liberals questioned the theory with Scalia-like vigor.

In American Electric Power Co. v. Connecticut, a group of state attorneys general are suing five utilities, claiming their carbon emissions are a “nuisance” under common law. Boiled down, they’re asking the Court to give judges the power to create climate policies—and weigh their costs and benefits—that would ordinarily be fashioned by the politically accountable branches.

But don’t take our word for it. “I mean, even just reading that part of your complaint, it sounds like the paradigmatic thing that administrative agencies do rather than courts,” Justice Elena Kagan told New York Solicitor General Barbara Underwood. “Now what,” chimed in Ruth Bader Ginsburg, “the relief you’re seeking seems to me to set up a district judge, who does not have the resources, the expertise, as a kind of super-EPA.”

Later, Justice Kagan, President Obama’s second nominee to the High Court, asked, “General, do you think that you have a federal common law cause of action against anybody in the world?” After all, everyone contributes to global warming. “Obviously the greatest benefit to reduce global warming would be, of course, to shut down the power plants, right?” as Chief Justice John Roberts put it. Should the courts have that power too—but extended over the entire economy?

Or “can the courts set a tax?” wondered Stephen Breyer. Ms. Underwood claimed that such a policy wouldn’t “abate the nuisance,” to which Justice Breyer acidly replied, “Oh, this will. This is addressed to that. It says abate the nuisance, here’s how you’re going to do it. You’re going to put a $20 a tax ton on carbon, and lo and behold, you will discover that nuisance will be abated.”

It’s heartening to see the Justices reaffirm their faith in the democratic process, especially after a 2006 case that the Obama Administration has used to justify its autocratic choice to impose carbon regulation via the Environmental Protection Agency. But even the proponents of the climate tort have been open about their bad faith. The point of this and other lawsuits has merely been to harass industry and coerce business into supporting a carbon crackdown, no matter what elected representatives decide.

While the Court could dismiss the judicial encroachment of the climate tort in a number of ways, the good news for the economy is that it appears to be toast.