- The Washington Times - Monday, April 18, 2011

Global-warming alarmists have failed to make their case in the court of public opinion, so they’re taking their propaganda to the Supreme Court instead. Like many ideological movements that lack political traction, the left is hoping that what politicians have disposed of the judiciary will impose.

On Tuesday, the Supreme Court will hear oral arguments in American Electric Power Co., Inc. v. Connecticut, the issue at hand being whether states and private groups may sue utilities over purported global warming. Several states and environmental activists sued five electric utilities for allegedly contributing to the “public nuisance” of global warming and seek a court order capping their carbon-dioxide emissions to the level required to achieve “reductions necessary to significantly slow the rate and magnitude of warming.”

Nuisance suits have long been used against polluters when the cause-and-effect chain is more obvious, like a factory dumping sludge into a public waterway. The inconvenient truth for the alarmists is that evidence keeps failing to mount that would support their climate-change theology. For decades, they have warned of imminent rising sea levels, famines, disease, refugee movements, increasingly deadly hurricanes and other threats. None of it has happened. The warming trend of the 1990s hit a wall in 1998 and has not picked back up, forcing the warmist movement to abandon its old moniker and try to rebrand itself as “global climate change.” If there is any public nuisance, it’s their endless carping over a problem that doesn’t exist.

Judges, who are notoriously susceptible to intellectual fads and the amicus briefs from pressure groups, are ill-equipped to impose carbon-dioxide caps. A judge looking to the United Nations for guidance to determine a “fair” level for emissions would discover that “climate stability” can be reached at a level of two metric tons emitted per person per year. For the average American, that would mean a 90 percent carbon-dioxide cut, bringing us down to around the standard of living of Uruguay. A 2008 MIT study showed that even the carbon footprint of a homeless person in the United States is more than four times the U.N. recommendation. According to the World Bank, carbon-dioxide emissions per capita in the United States are slightly lower than they were in 1968; energy use per capita has basically flatlined for 40 years. If there is a growing problem, it’s not growing here.

If the logic of the nuisance lawsuit is accepted, it will unleash a tsunami of litigation that would drive the economy to a standstill. Every energy producer would face a new lawsuit. Every manufacturing plant would have to account for its supposed carbon output or be hauled before a judge. Livestock producers would have to answer for the carbon-dioxide emissions of their animals, and logging limits would be placed on timber companies for depriving the world of oxygen. The legal challenges - and the legal fees - would be endless.

The Obama administration is in a political fix because while the president and his Democratic colleagues worship at the climate-change altar, the Justice Department has filed an amicus brief in support of power companies. Justice argues that “common-law nuisance claims are quintessentially fit for political or regulatory - not judicial - resolution.” In practice, what this means is that President Obama would rather job-busting carbon caps be unilaterally imposed by unelected EPA bureaucrats than by unelected judges. When it comes to destroying the economy through environmental extremism, Mr. Obama isn’t against it, he just wants the credit.