The U.S. Supreme Court largely ducked the most outlandish parts of the Second Circuit’s decision in American Electric. Instead, the Court reversed the lower court on the easiest of the several grounds for reversal: displacement of federal common law.  

But how would the political question doctrine have fared had the Court decided it? The answer to that question can be found in what the Court did say in concluding that the Clean Air Act and the EPA had displaced federal common law.

The Court wrote that:

The appropriate amount of regulation in any particular greenhouse gas-producing sector cannot be prescribed in a vacuum: as with other questions of national or international policy, informed assessment of competing interests is required. Along with the environmental benefit potentially achievable, our Nation’s energy needs and the possibility of economic disruption must weigh in the balance.

The Clean Air Act entrusts such complex balancing to EPA in the first instance, in combination with state regulators.

Remember how the Second Circuit concluded that federal district judges could decide global warming public nuisance claims on the basis of “well-known tort principles without requiring the court to wade into policy matters reserved for the other branches of government.”

Well, the Court said that these types of policy questions are better suited for Congress—not a sole federal district judge—to decide:

It is altogether fitting that Congress designated an expert agency, here, EPA, as best suited to serve as primary regulator of greenhouse gas emissions. The expert agency is surely better equipped to do the job than individual district judges issuing ad hoc, case-by-case injunctions. Federal judges lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order. See generally Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 865–866 (1984). Judges may not commission scientific studies or convene groups of experts for advice, or issue rules under notice-and-comment procedures inviting input by any interested person, or seek the counsel of regulators in the States where the defendants are located. Rather, judges are confined by a record comprising the evidence the parties present. Moreover, federal district judges, sitting as sole adjudicators, lack authority to render precedential decisions binding other judges, even members of the same court.

I think even the more liberal Justices would have a difficult time writing an opinion holding that a sole federal district court should decide why and how to limit carbon dioxide omissions.  

For prior coverage of American Electric click here and here. For coverage of the decision click here, here and here.