A battle of footnotes in Monday's Supreme Court global-warming decision Massachusetts v. EPA makes it clearer than ever how crucial Justice Anthony Kennedy's vote is to the outcome of big cases. Justice John Paul Stevens, writing for the five-member majority, and Chief Justice John Roberts Jr., writing for the four dissenters, crossed swords over the meaning of Georgia v. Tennessee Copper Company, a completely obscure decision written by Justice Oliver Wendell Holmes Jr. (pictured here) just shy of a century ago. Holmes ruled that Georgia had standing to complain about the Tennessee company’s noxious emissions that resulted in a “wholesale destruction of forest, crops and orchards” in Georgia land just across the border from Tennessee.
That precedent was the key to Stevens’ finding that Massachusetts – which complains that global warming is shrinking the state’s coastal land mass -- had standing to complain about the EPA’s failure to regulate greenhouse gases. Roberts complained in a footnote that Tennessee Copper has “nothing to do with” the standing issue, and Stevens makes the link in a footnoted reply.
What does the squabble have to do with Kennedy? It turns out that none of the dozens of briefs in the global warming case even mentioned Tennessee Copper. But Kennedy did, during oral arguments last November. He asked assistant Massachusetts AG James Milkey what his best case for state standing was, and while Milkey was pondering an answer, Kennedy suggested Tennessee Copper might be the one. That mention must have sent Stevens and Roberts to the library in search of the best way to spin the Tennessee Copper case to win Kennedy over. Stevens won the beauty contest, Kennedy voted his way, and the rest is history.
Note: On this case as with all modern phenomena, first there's the event, then comes the blog. Community Rights Counsel, which helped make the states' case against the EPA in Monday's decision, has just launched Warming Law Blog with the latest news and background material on global warming-related litigation.