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When it comes to the necessity of facing down pollution in the nation’s electricity system and other major polluting industries, it is hard to read recent Obama Administration action as anything other than a strong statement to leading environmental organizations:

Stay out of our way, we don’t need your help … we don’t need it.

With monumental inaction by the U.S. Senate in the face of devastating climate chaos from flooded Pakistan to smoldering Russian to heat records in many nations and many areas of the United States, the paths forward to effective action to turn the tide away from egregious CO2 emissions seem limited (at best).  With the President (and his Administration) having, to put it politely, flubbed its leadership role on the climate front in terms of getting serious and meaningful action through the U.S. Congress, we have to wonder seriously at the latest action.

The Obama Administration has decided to side with polluters when it comes to the Clean Air Act (CAA), providing a brief to the Court arguing that Federal administrative and regulatory action obviates any standing for states or private entities to use CAA “nuisance” provisions to act in protection of their citizens’ or their own interests.

As per the brief filed by the Acting Solicitor General,

“EPA has already begun taking actions to address carbon-dioxide emissions.

That regulatory approach is preferable to what would result if multiple district courts — acting without the benefit of even the most basic statutory guidance — could use common-law nuisance claims to sit as arbiters of scientific and technology-related disputes and de facto regulators of power plants and other sources of pollution.”

Over the past century, nuisance law provisions have proved a powerful tool for dealing with polluters who, for whichever set of reasons, are falling outside serious governmental action to curb the damage their “externalities” are causing others.

The Obama team’s action is almost incomprehensible. As Joe Romm notes

As with the decision to embrace offshore drilling, we’ll no doubt eventually learn that this decision — which lies somewhere on the scale between between unproductive and counter-productive — was made without serious input from those in the administration who represent science or the environment. … I couldn’t find anyone who thinks this moves makes much sense. NRDC’s David Donger told the WSJ, “We are appalled.”

That the Administration chose to issue a brief on the side of the Federal government against a state or private legal action really isn’t surprising even if that choice alone would be concerning. What is truly — and seriously — concerning about this situation is what seems to be the blinder-wearing decision-making behind this action.

1.  Congress isn’t acting, in no small part due to the influence of Anti-Science Syndrome suffering Haters Of a Life-sustaining Economic System, and the Obama Administration brief does nothing to bolster the chances of Congressional action. With the Obama team working, it seems, to undermine the power of CAA provisions (and the ability of the strong legal teams from organizations like the Sierra Club, Environmental Defense Fund, and Natural Resources Defense Council to use the CAA provisions to constrain polluters), why should polluters (and their supporters) feel any greater motivation to come to the table for serious discussions about how to move onto a path for lowering pollution levels moving forward?

2. While the Administration is moving forward with regulatory action, these will be fought (tooth and nail in many situations) by polluters and will take a long time to move forward.  Without the actions from state and private institutions, these polluters will be able to focus even more resources on fighting Federal action as they will not need to be concerned about the threat from the (highly) competent NRDC/EDF/Sierra Club/etc legal teams working with state Attorney Generals.

3. The Obama Administration decision seems oblivious to the fact that the Federal Courts are packed with judges with conservative judicial philosophies. (Note that it is likely that President Obama’s two appointees to the Supreme Court would likely recuse themselves from the case if it reached the Supreme Court — thus giving, almost certain, the pro-Corporatist Polluters side the victory in any decision.) The Obama Administration’s brief’s arguments creates an opening for an activist judge (which, after all, is what we are seeing from many of the conservative jurists) to eviscerate the CAA’s provisions for state and private actions to constrain entities’ (utilities, factories, otherwise) ability to dump pollution into the commons — and, by corollary, into our lungs.

4. The Obama Administration action seems to be oblivious to the basic reality of American political structure — elections change government and the next Presidential administration might have far less interest in regulatory action to constrain polluters. (Hmmmm … was the previous Administration very interested in constraining the pollution threatening American lives and security?) The Administration’s arguments, if accepted by the Courts, would seriously weaken the ability for States and private organizations to leverage the CAA to get that future Administration to take action against polluters killing Americans and weakening American security.

Very simply, the use of “nuisance” provisions have contributed to lower pollution levels over the past century. Lawsuits from States using “nuisance” provisions have saved lives and helped reduce damage to communities. Clean Air Act “nuisance” provisions have been a real tool for improving American society and the Federal Court decision upholding that CAA nuisance provisions can apply for greenhouse gas (GHG) emissions were a real victory that could eventually lead to lowering US emissions that would occur under a business-as-usual scenario, even with Obama Administration regulatory action. The brief from the Obama Administration could undermine this real victory and represents a threat to America’s ability to carve out a lower carbon future in anything remotely resembling a timely manner.

All in all, it is hard to see good in this Obama Administration action.

See:

• Ian Millhiser, DOJ Asks SCOTUS To Vacate Environmental Victory Against Greenhouse Gas Emitters, Wonkroom
• RLMiller, “Stabbed in the Back”: Obama sides with nuisance polluters
• Jonathan Zasloff, Obama sides with the polluters, Legal Planet
• Gabriel Nelson, Obama Admin Urges Supreme Court to Vacate Greenhouse Gas ‘Nuisance’ Ruling, Greenwire/NYTimes
• Stephen Power, Obama Stance on Climate Suit Stuns Allies, WSJ Blogs

For discussion of the case, see Breaking: Federal court says states may sue utilities over GHGs. NY AG Cuomo: “This is a game-changing decision for New York and other states, reaffirming our right to take direct action against global warming pollution from power plants.”