We hear a lot about whether judges are “liberal” or “conservative” in their views. Some cases, however, do not lend themselves to such neat distinctions.
Witness American Electric Power v. Connecticut, a case where oral argument was just heard before the United States Supreme Court. The American Electric Power case involves six States and private plaintiffs who are suing six companies, alleging that the companies’ emission of greenhouse gasses crosses a number of State jurisdictions and should be halted. (Originally, there were eight State plaintiffs, but two of them, Wisconsin and New Jersey, quit the suit after Republican Governors were elected). The concept advanced by the Plaintiffs is that, even though federal EPA has not acted to regulate the specific emissions at issue, nonetheless Plaintiffs can challenge the emissions under common law as constituting a public nuisance.
The corporate Defendants have countered that, since neither Congress nor the President have set policy with respect to these emissions, the Courts cannot step in and create policy. Under this line of reasoning, the Courts’ job is (absent Constitutional issues) simply to enforce the policy decisions of the other two branches. Since the other two branches have not adopted a policy regulating such emissions as applied to the facts at issue, the argument goes, there is nothing for the Courts to enforce.
The trial Judge accepted the Defendants’ reasoning, commenting:
“As the Supreme Court has recognized, to resolve typical air pollution cases, courts must strike a balance ‘between interests seeking strict schemes to reduce pollution rapidly to eliminate its social costs and interests advancing the economic concern that strict schemes [will] retard industrial development with attendant social costs.’ In this case, balancing those interests, together with the other interests involved, is impossible without an ‘initial policy determination’ first having been made by the elected branches to which our system commits such policy decisions, viz., Congress and the President….”
The appellate court (2nd Circuit) disagreed, stating, “Nowhere in their complaints do Plaintiffs ask the court to fashion a comprehensive and far reaching solution to global climate change... Instead, they seek to limit emissions from six domestic coal-fired electricity plants on the ground that such emissions constitute a public nuisance that they allege has caused, is causing, and will continue to cause them injury.”
As noted, the case is now before the Supreme Court. In oral argument this past Tuesday, neither the “liberal” nor “conservative” Justices appeared very sympathetic to the Plaintiffs; and, indeed, a betting person should probably wager that both the liberals and conservatives on the Court issue an opinion coming down on the side of the corporate Defendants.
This lack of empathy toward Plaintiffs across the ideological spectrum highlights the fact that both liberals and conservatives have their own, internal, competing values. While, for example, liberals perhaps would be thought to have empathy for Plaintiff States suing corporations over pollution, this empathy must contend with the equally competing notion that the federal Government, rather than individual States, should be the referee of problems having national implications.
Conservatives have their own competing priorities. Champions of States’ rights, nonetheless conservatives are also generally empathetic with business interests. Plainly the two competing values clash in the American Electric Power case—a decision in favor of the corporations curbs States’ power to sue, while a decision in favor of the Plaintiffs imposes greater restrictions on business. (A notable example of this conflict of ideas occurred in the 1980’s. After California voters passed Proposition 65, requiring among other things products to have warnings about carcinogens/reproductive toxicity, the Reagan Administration considered taking action on behalf of business against the State. Ultimately, the States’ rights side of the argument prevailed, but the issue wasn’t free from doubt).
None of the foregoing is to say that judges do not earnestly try to deiced cases on their merits. But judges are human; their view of the merits, particularly in a case with widespread policy implications, is of necessity colored by the judges’ view of the Constitution and the proper role of government in general—indeed, that’s why judges, especially those on the Supreme Court, so frequently are considered “liberal” or “conservative.” In the American Electric Power case, it appears that, for the liberal Justices, the impulse toward national, uniform regulation is going to win out despite the protection that will in this instance be afforded to the corporations; and it also appears that, for the conservative Justices, the impulse toward protecting business will win out despite the curb this will place on States’ rights.
From my column for the Valley News Group of papers, www.valleynewsgroup.com
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