Greens set to lose ‘nuisance’ claim in Supreme Court

Perhaps most surprising were the questions from liberal justices that seemed to indicate no sympathy for the plaintiffs and highlighted major differences with the 2007 case on carbon emissions, Massachusetts v. EPA. Then, Justice Anthony Kennedy joined the liberal wing of the court in finding that carbon emissions could be regulated under the Clean Air Act. This time around, Kennedy said nothing to encourage the plaintiffs. Justice Ruth Bader Ginsburg, a Democratic appointee who was also in the majority in the earlier case, went further in casting doubt on the plaintiffs’ arguments. Ginsburg told New York Solicitor General Barbara Underwood, who argued the case for the plaintiffs, that what the states were asking the courts to do seemed to be a role for the government. “That just sounds to me what EPA does,” Ginsburg said. Judges do not have “the resources or the expertise” to make the kind of decisions about cutting emissions, including what type of technology to use, that EPA does, she added. Justice Elena Kagan, another Democratic appointee, seemed to agree, saying that what the states wanted was “the type of thing administrative agencies do.” It was a line of inquiry enthusiastically followed by conservative members of the court, including Chief Justice John Roberts Jr. In seeking to probe the limits of what the plaintiffs are seeking, he asked Underwood whether a judge could simply order a utility to shut down all its plants. “I think that’s a pretty big burden to impose on a district court judge,” Roberts said.

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