MICHELE NORRIS, host:
The politics of climate change hit the Supreme Court today. The justices heard arguments that illustrated the powerful and unpredictable role the court can play in protecting the health and safety of the nation. Just four years ago, the court repudiated the Bush administration on climate change. It ruled five to four that the federal government does have the duty to regulate carbon dioxide and other greenhouse gases.
But, today, as NPR's Nina Totenberg reports, the justices seemed deeply skeptical about letting state governments get into the regulatory act through the courts.
NINA TOTENBERG: The case was brought in 2004 by a coalition of states and environmental groups. With the federal government doing nothing to regulate greenhouse gases, the state sued the nation's five largest utilities -companies that together produce 10 percent of the nation's carbon emissions annually. The states were seeking a court order to cap emissions.
For a variety of reasons, the lawsuit languished for five years. And in the meantime, the Supreme Court ruled in a different case that the federal Environmental Protection Agency is required to regulate such emissions.
What's more, President Obama took office, and his EPA announced plans to regulate. The states' case, however, trudged on in the lower courts, and in 2009, a federal appeals court in New York ruled it could go forward to trial.
At the time, in light of the Obama administration's effort to regulate greenhouse gases, the lower court ruling seemed little more than a footnote. But the utilities appealed to the Supreme Court, where, joined by the Obama administration, they contended that the states have no right to sue the utilities to enforce public health and safety.
By the time the case was argued today, the political situation had changed again and the case looked like it could be a good deal more than a footnote. So says Richard Lazarus, director of the Georgetown University Supreme Court Institute.
Professor RICHARD LAZARUS (Director, Georgetown University Supreme Court Institute): Everything has changed again. You have a Congress which is trying to undo everything. They're trying to rewind back to 2004.
TOTENBERG: Indeed, the newly Republican House of Representatives voted this year to strip the EPA of its rule-making authority on greenhouse gases. And while the recent budget compromise did not include that provision, Republicans and some Democrats are widely expected to push it again. So, today in the Supreme Court, New York Solicitor General Barbara Underwood pleaded with the justices not to close the courthouse doors to the states.
She acknowledged that the states' lawsuit has reached the court at a peculiar moment in time when an EPA rule is said to be imminent but not something that actually exists. Until there actually is a set of federal regulations limiting greenhouse gases, she said, the status quo is that the five utilities in this case are using old and dirty technology to emit 650 million tons of carbon dioxide into the atmosphere each year in this country and that these emissions cause an increase in respiratory illness, a reduction in useable drinking water, a rise in sea levels, beach erosion and flooding.
The federal common law gives the states a remedy for pollution, she said, and it cannot be that the mere promise of a regulation from the federal government is enough to prevent the states from acting in court. Her argument met with clear resistance from all the justices, both liberal and conservative.
Justice Ginsburg: Congress set up the EPA to promulgate standards for emission and now you want to have a district court judge be a kind of super EPA?
Chief Justice Roberts wondered whether the courts would be asked to weigh the benefits of new technology against increased cost of electricity to consumers. Answer: We've alleged that this can be done without increasing the cost to consumers, Said Underwood. And in any event, these are facts that can be proven or not proven at trial.
Justice Kagan: This sounds like the paradigmatic thing that administrative agencies do rather than courts. Yes, agreed Underwood, but if there is no federal agency regulation and someone is shooting poison in the air in a way that affects people in other states, the law gives the states a remedy in court.
Nina Totenberg, NPR News, Washington.
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