This column by ACRU Senior Legal Analyst Ken Klukowski was published April 19, 2011 on The Washington Examiner website.
It appeared yesterday during oral arguments in a case raising important constitutional and political issues that members of the U.S. Supreme Court doubt the wisdom of allowing federal judges the power to regulate carbon emissions.
The case was AEP v. Connecticut in which eight states sued American Electric Power and other electricity providers over carbon emissions. They allege that although there is no authorizing federal statute, that federal “common law” — centuries-old legal doctrines of practice and tradition — entitle them to have federal courts designate carbon emissions a “public nuisance” and devise a cap-and-trade type of regulatory regime. The 2nd Circuit federal appeals court bought into this idea.