In an amicus brief filed yesterday in support of American Electric Power and other utilities companies in the U.S. Supreme Court, President Obama’s Department of Justice stunned environmental activists by opposing the imposition of new tort liability on energy companies that discharge carbon dioxide into the atmosphere.

The United States has asked the Supreme Court to vacate the Second Circuit’s decision in AEP v. Connecticut, in which the Second Circuit affirmed the right to sue carbon dioxide emitters under a common law theory of nuisance.  In September 2009, the appeals court ruled that plaintiffs could sue American Electric Power Co. and five other leading utility companies for their carbon dioxide emissions (which had been already been approved by government issued permits).  The plaintiffs, which included several state attorneys general, claimed that the defendants’ conduct contributed to global warming, which in turn would cause sea levels to rise and “will inundate . . . much of New York City’s infrastructure, including airports, tunnels, sewers, and subway stations.”

Many legal policy experts, including the Washington Legal Foundation, have long insisted that the debate over the effects of carbon emissions on the rise in global temperature is strictly a political question that should not be decided in the courts.  The district court below agreed, dismissing the case on political question grounds.  On appeal, the Second Circuit reversed, but the tide may yet turn again.

Specifically, the brief of the U.S. Solicitor General asked the Second Circuit to vacate the Second Circuit’s ruling and defer to the administration’s desire to regulate greenhouse gases through the congressionally enacted Clean Air Act.

By insisting that highly charged policy issues surrounding global warming should be decided in the political arena—not determined by the courts—the Obama administration angered environmental activists and plaintiffs lawyers who were looking to score easy victories (and large legal fees) by bringing tort claims under the public nuisance doctrine.  Upon learning of the governmnet’s brief, Matt Pawa, a plantiffs’ attorney in the case, announced that he “[felt] stabbed in the back.  This was really a dastardly move by an administration that said it was a friend of the environment.  With friends like this, who needs enemies?”

The extent of any global warming and its causes and effects remains highly controversial and ultimately should not be decided by unelected federal judges.  Judicial regulation of the environment would ask legal experts to inexpertly answer scientific questions and would create a fractured regulatory framework, crippling interstate and international businesses.  The President—and others including Harvard Law professor Laurence H. Tribe who published a WLF paper on this subject—has correctly suggested that the courts step aside on political matters such as this and allow the elected branches of government to seeks solutions.  Now it remains to be seen whether the Supreme Court will take up the case.