The strange bedfellows of state sovereignty and climate change.

Breathe me, Seymour.

SCOTUS this week seems awfully unconvinced that states should be able to slap down utility companies that disperse CO2 into the atmosphere. What’s fascinating about the case is that it stands at the vanguard of climate change jurisprudence, but draws on legal precedent that is more than 100 years old and could equally be considered a landmark decision in states’ rights. Strange bedfellows indeed. What doesn’t surprise me as much, however, is the Obama administration being enticed by  executive versus judicial power in regulating emissions. In general, why would he want to give it up power his branch already has? I can certainly think of reasons, but doubt he, like his predecessors, would identify with any of them. I imagine many of his environmentalist supporters feel betrayed, however.

a history lesson.

None other than Oliver Wendell Holmes — that titan of liberal jurisprudence (and American jurisprudence generally) — delivered the opinion of the court in the 1905 Georgia v. Tennessee Copper case. Georgia sought to sue the company for creating air pollution that adversely affected land in the state. The decision is a watershed moment in public nuisance jurisprudence. The verdict was that states, in their “quasi-sovereign” capacity, retained some sovereign rights after forming the Union. Among these rights was the ability to prosecute public nuisances instigated by corporations on any land within their domain. Here’s an illuminating passage:

This is a suit by a state for an injury to it in its capacity of quasi-sovereign. In that capacity, the state has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air.


So one of the more liberal judges in American history wrote a landmark decision in favor of state sovereignty — the darling concept of the modern right-wing. And now it’s being drawn on with respect to utility companies’ carbon emissions spilling into states’ domains. To me, this raises two questions:

  1. Does a case that is over 100 years old hold water in this application?
  2. Is CO2 a pollutant?

Both of these are questions of semantics and interpretation. The court seems predisposed to answering the first question in the negative. EPA seems to be doing an ample amount to regulate emissions already, and news reports suggest that the justices see no need to saddle judges with the weighty task of regulating carbon emissions. It recognizes the modern characteristics of the regulatory state and keeps with the value of judicial restraint that makes up the professional ethos. The answer to question 2 is debatable from a scientific and empirical standpoint I suppose, but not legally. The court ruled in 2007 that CO2 was in fact a pollutant for the purposes of regulation under the Clean Air Act.

evolving (emissions?) standards.

I will say, though, that the zeitgeist really doesn’t seem to consider modern states as “quasi-sovereign.” I’m saying this as someone who appreciates state sovereignty arguments and who would love nothing more than states pursuing them generally. I recognize, however, that it’s just not the way things are anymore. Justice Kagan signalled this sentiment:

Justice Elena Kagan agreed. Prior to the 1970s, when Congress enacted the Clean Air Act and the Clean Water Act, judges decided “nuisance” lawsuits where one state sued another for causing pollution. “It’s a different world,” she said, now that the EPA has the legal authority to regulate pollution, including greenhouses gases.

And I am nearly certain that liberal environmentalists are not fond of the states’ rights argument generally either. So in a way it’s curious to me that it’s being co-opted into the environmental platform. The beauty of it all, though, is that it somehow remains logically consistent.


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