Media Advisory: Supreme Court Justices’ Questions about Global Warming Lawsuit May Spell Trouble

Published April 19, 2011

In a lawsuit against five electrical power generating companies, six plaintiff states want a court order labeling their power plants’ emissions of greenhouse gases a “public nuisance” and requiring reduction in such emissions. The case was argued in the U.S. Supreme Court this morning, in what amounted to a grilling of both sides by the Justices.

The merits of the case – such as whether man-made emissions of greenhouse gases cause global warming and whether the remedy here is proper for judicial resolution – are not yet before the Court.

The following statement by attorney Maureen Martin, Heartland’s senior fellow for legal affairs, may be used for attribution.

“It’s always dangerous to read the tea leaves based on oral argument in Supreme Court cases, but two things seem clear from the session held today in the American Electric Power case.

“First, the Justices’ questions for the defendant electric power companies indicated they are troubled about barring the case on the technical legal grounds now at issue. These issues primarily involve, first, the doctrine of ‘standing,’ which goes to whether there is a ‘case or controversy’ that must exist under the U.S. Constitution to justify judicial resolution.

“Second, there is the issue whether the questions involved in the case are political ones reserved to Congress.

“Chief Justice Roberts and Justices Scalia, Kennedy, Kagan, and Ginsburg all had questions on these technical issues, thus seeming to signal they would prefer to have the case return to them on the merits – that is after a trial below. That could take a decade.

“The Justices also seemed troubled by the plaintiffs’ case as well, particularly their request for a court-ordered quantified limitation on emissions. Several justices were concerned by the overwhelming complexity that task would involve. Justice Ginsburg suggested plaintiffs were asking the federal trial court to act as a ‘super EPA.’ This issue, though, goes more to the merits of the case, not yet before the court.

“There may be room for a compromise ruling by the Court, but judging from the questioning today, it seems quite possible this case will go to trial.”

Maureen Martin, J.D.
Senior Fellow for Legal Affairs
The Heartland Institute
[email protected]

The Heartland Institute is a 27-year-old national nonprofit organization with offices in Chicago and Washington, DC. Its mission is to discover, develop, and promote free-market solutions to social and economic problems. For more information, visit our Web site at or call 312/377-4000.