The Climate Elephant in the Voting Booth

By Associate Professor Kathy Trisolini
In the immediate aftermath of "Superstorm" Sandy, a number of articles appeared in the mainstream press with pundits asking how Sandy might affect the election. Aside from practical questions about the logistics of early voting, most pundits focused on how the candidates' responses could affect their respective public images. "Who would 'look like' a leader?" they asked. Yet the presidential election is much more important than just another issue of People magazine, a fact obscured by the excessive focus on image and how it affects the horse race.

Sandy is just another example of a changing trend in extreme weather events. Last summer, excessive drought damaged crops and stranded boats on the Mississippi; each summer we are setting new heat records and Arctic ice falls to historic lows. Human-caused climate change is altering the stable environment upon which we have relied in choosing where to live and deciding how to build our homes, how to lay out our infrastructure and how to develop our economy. This should be an election issue of the first magnitude.

Apparently under sway of the woefully mistaken notion that environmental protection and economic health are competing goals, the national Republican Party has decided that it is in its interest to take an extreme anti-science position on climate change. In fact, as Sandy should be making clear, our economic health (not to mention our personal safety) is highly dependent on stable climactic conditions. The economy is not thriving when the nation's airports are shut down, Lower Manhattan is under water, and millions of people are without electricity.

American Electric Power Co. v. Connecticut;: Supreme Court Reaffirms EPA Authority to Regulate Greenhouse Gases

By Associate Professor Katherine Trisolini

This is another installment in the Summary Judgments summer series, "The Headline Club," in which Loyola Law School professors will discuss legal issues ripped from the front page.

Today the Supreme Court handed down its decision in American Electric Power Co. v. Connecticut. Justice Ginsburg's opinion holds that the Clean Air Act displaces federal common law claims against power companies for contributing to the public nuisance of global warming. The decision reverses a Second Circuit case holding that state, local, and nonprofit plaintiffs had succeeded in stating a claim against five fossil-fuel fired power companies under federal common law. The Second Circuit case included a lengthy discussion supporting plaintiffs' standing and rejecting the trial court's conclusion that climate change presented a nonjusticiable political question.

While several headlines have focused on the Supreme Court's "rejection" of Connecticut's challenge, such attention to the formal outcome misses the real import of the case. The opinion bolsters EPA's authority to tackle greenhouse gases.

The Obama Administration had gambled that the Court would decide the case on the relatively narrow grounds that EPA's Clean Air Act authority to regulate greenhouse gas emissions from power plants displaces federal common law nuisance actions (leaving those who seek to reduce power plant emissions via federal law to first petition EPA rather than the courts).

Given the Court's 5-4 split on standing to raise a climate change challenge in Massachusetts v. EPA (2007) and the retirement of that opinion's author, Justice Stevens, the current case seemed like potentially fertile ground for a retrenchment on standing. However, the Administration's gamble seems to have paid off; conservatives did not get enough votes to decide the case on standing grounds. (Nor did the defendants succeed in luring the Court into expanding the narrow political question doctrine into a jurisdictional bar to climate change litigation.) Having initially been on the Second Circuit panel, Justice Sotomayor did not participate in the Supreme Court decision, leaving eight members to split evenly on the issue of standing. The opinion notes without elaboration that the Court's four to four division on standing leaves intact the Second Circuit opinion on that issue (and its general exercise of jurisdiction).