The District Court Should Do What?
The complaints seek to impose tort liability, alleging that the defendants’ generation of electricity has been and will continue to be wrongful. The plaintiffs request the court to "permanently... enjoin each Defendant to abate [the] nuisance first by capping carbon dioxide emissions and then by reducing emissions by a specified percentage each year for at least ten years."
These questions are not "discrete"; rather, they are inextricably intertwined with the climate change/energy future issues being debated nationally. Furthermore, no "well-settled principles" are available to guide the district court. The "remand for further proceedings" order offers no criteria to resolve whether the generation of electricity, fully compliant with operating permits and other regulatory requirements, may constitute an actionable tort.
With respect to the possible remedy the district court may impose, the Decision again retreats into legal abstractions — the district court may not "set across-the-board domestic emissions standards or require any unilateral, mandatory emissions reductions over entities not party to the suit." How the district court is to adhere to this mandate and yet fashion a meaningful remedy and reduce emissions in the eight plaintiff states that stretch from coast to coast is never intimated.
Congress Must Act
Tort law works best in discrete two-party disputes in which the court’s order can restore the damaged party to the conditions existing prior the tortuous conduct (such as through monetary damages) and the remedy has little or no consequences on the general public (such as prohibiting a "junk yard" at a neighbor’s residence). Tort law offers a poor means to seriously address climate change. Emissions at fossil fuel plants can only be reduced by ceasing or curtailing operations or installing retrofits. Either option will increase the generation costs and potentially impair the reliability of electric service. The costs emanating from the court order will inevitably flow to consumers. The judicial system lacks the expertise to balance the competing values of cost and reliability of electric service versus the costs climate change will continue to impose if the planet maintains its current emission levels.
The Decision, however, does offer a better solution. It reminds us that the separation of powers cornerstone of our federalist system retains for Congress the full authority to "override" any judicial decision based on "federal common law." Enacting effective climate change legislation presents Congress daunting economic and scientific challenges, but further congressional delay is not a responsible option. Political rhetoric based on "climate change denial" must yield to proposing solutions to the challenges that climate change poses for this and future generations.
As John Rowe, chairman and CEO of Exelon Corp., recently stated: "The carbon-based free lunch is over." The Decision makes clear that, by failing to act in a timely way, Congress will be abdicating its legislative responsibilities to the judiciary, which is ill-equipped to develop or implement an effective strategy for addressing climate change.
—Steven F. Greenwald (stevegreenwald@dwt.com) leads Davis Wright Tremaine's Energy Practice Group. Jeffrey P. Gray (jeffgray@dwt.com) is a partner in the firm's Energy Practice Group.
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