States, Power Plants and EPA – Oh My!

The hotly contested global warming case before the Supreme Court this week puts States and environmental groups up against industry. In American Electric Co. v. Connecticut, the Supreme Court must decided if the States can use public nuisance laws in order for a district court to set limits on carbon dioxide emissions from the top 5 greenhouse gas producing power plants in the United States. The power plants argued the complexities involved in setting such limits pointed to why the EPA should be responsible for setting emissions and not the court.

Are you asking yourself, “Then where is the EPA in all of this?” Well, in 2007 the Supreme Court in Massachusetts v. EPA, 549. U.S. 497, ruled the EPA had the authority
under the Clean Air Act to regulate carbon dioxide emissions and other greenhouse gases from motor vehicles. At this time, the EPA has not set limits on carbon dioxide emissions from stationary sources like the power plants. The EPA, however, has begun the initial process of formulating regulations and enacting a rule, though the process takes a long time to complete. The EPA is not expected to issue power plant emission limits anytime before 2012. If the EPA did set emission limits for stationary sources such as the power plants it would displace the federal common public nuisance law and make the States’ case moot. This would mean the States would not be able to bring the claim under the federal common law.

In considering the EPA’s involvement, Justice Ginsburg was skeptical on whether the Court should ignore the EPA’s “first steps” towards regulations and have the judiciary set what might be conflicting limits. The States’ attorney, Barbara Underwood, responded to Justice Ginsburg’s inquiry that the Supreme Court should not conclude “promises” of federal regulations on carbon emissions in fact displace the federal common law. The Justices determined they would look at if the EPA regulations were imminent.

Despite the Justices conclusion, Underwood’s response may not be unwarranted. Underwood said there were a number of things that could delay and setback the EPA from fulfilling the promised regulation. One possible delay to the “promises” of federal regulation could be a shift in political power in Congress or the White House. In fact, at the beginning of April Senate Democrats barely defeated a Republican-backed bill that would prevent the EPA from “taking any action on climate change.”

Since the 2007 EPA case, which had a 5-4 ruling, two new justices have joined the Court. One of the new justices, Sonia Sotomayor, has recused herself because she served on the Second Circuit when it heard the case in 2009.
Speaking on the global warming case now before the Supreme Court, Connecticut Attorney General George Jepsen said the coalition of states and land trusts “took this action because we cannot stand idly by while carbon dioxide continues to be emitted without any controls.” Soon Mr. Jepsen, along with the rest of the country, will know where the Supreme Court stands.

-Ashley Harvey, Legal Intern