The Obama Administration and Climate Change Litigation

Now that the Republicans have blocked climate change legislation, the administration has a change to ratchet up the pressure through litigation.

I just got a call from the managing editor of Carbon Control News, which seems to be a pretty informative and useful web-based publication.  His question: why hasn’t the Tennessee Valley Authority joined the rest of the utilities in asking the Supreme Court to grant certiorari in Connecticut v. AEP, the federal common law public nuisance case concerning greenhouse gas emissions?

To me, it seems that the answer is obvious.  The Obama Administration wants comprehensive climate change legislation, the chances of which are profoundly smaller this session than a snowball in hell.  If the Second Circuit’s decision allowing the suit to go forward is either upheld by the Supremes or (more likely) the high court doesn’t grant cert, then the only way to get rid of the suit is for Congress to displace it.  And the only way for Congress to displace it is to pass legislation.  As is the case with EPA authority to regulate carbon, this puts more bargaining power on the side that wants regulation.

Put another way, if the Obama Administration decides to enter the suit on behalf of the utilities, it would put the lie to its desire to get climate legislation.  It will be interesting to see what the Justice Department does; I would hope that Acting Solicitor General Neal Katyal would file a brief with the Court recommending against cert.  At the very least, TVA should drop out of the suit

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.

One thought on “The Obama Administration and Climate Change Litigation”

  1. This would be the same President Obama that took at least one of his children swimming in the Gulf of Mexico?

    For a propaganda swim for BP and NOAA? When everyone that is not receiving money from BP and NOAA is saying that the president and BP are lying. That the freaking oil is still out there and BP has NOAA in its pocket.

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