A Supreme test: Are CO2 emissions a 'nuisance'?

Will Justice Anthony Kennedy pass tomorrow’s test of judicial common sense?

The Supreme Court will hear arguments tomorrow about whether carbon dioxide emissions can be considered as a “nuisance” under common law.

Though common law nuisance has traditionally been limited to noise, noxious fumes, odors and other perceptible annoyances, environmentalists  — acting through their state and municipal running dogs (Connecticut, California, Iowa, New York, Rhode Island, Vermont and New York City) — are trying to extend the doctrine to greenhouse gases to open the floodgates of climate litigation.

Applying nuisance common law to greenhouse gases, of course, is absurd since they are colorless, odorless and tasteless. Even if one believes in greenhouse gas-caused global warming, as the Competitive Enterprise Institute’s Sam Kazman once pointed out

It’s called global warming, not California warming. Anyone who thinks otherwise is California Dreaming.

There’s a lot at stake should the Supreme Court fail to make the right call. American Electric Power chief Mike Morris told the Wall Street Journal:

The cost of electricity would quadruple [if the states prevail. Whatever the costs of cleaning up emissions], we’d recover them from our customers.

Based on the Court’s decision in its last climate decision — i.e., Massachusetts v. EPA, in which the Court ruled that the EPA could regulate greenhouse gases — Justice Anthony Kennedy could be the swing vote.

Giving Kennedy the benefit of the doubt for his 2007 vote in favor of global warming junk science — perhaps he simply got caught up in the climate alarmism sweeping America at the time — Kennedy will have no such excuse this time as:

• The physics are clear regardless of your views on global warming — i.e., even if greenhouse gas emissions were “harming” the climate, they would only do so on a global basis;
• Total U.S. emissions are only a relatively small percentage of global emissions (about 17%);
• U.S. coal-fired power plant emissions are only about 30 percent of total U.S. emissions; and
• The running dog states won’t be suing the rest of the world for nuisance.

Any Justice that overlooks these indisputable facts ought to be impeached.