Tuesday, May 24, 2011

Supreme Court Hears Global Warming Case – American Electric Power Co. v. Connecticut.

The Supreme Court heard the first set of oral arguments this past Tuesday in the controversial global warming case involving a coalition of states, New York City, and three environmental land trusts (States) against 5 coal-burning power plants. This is the Supreme Court’s only environmental case this term. The central issue in the case is whether the plaintiffs can use public nuisance laws to force the power plants to cut their carbon dioxide emissions. The power plants emit 650 million tons of greenhouse gases per year making them the top emitters in the country and a significant contributor to global warming. The States argued they should be able to use the federal common public nuisance law to seek the reductions and protect their citizens and lands from injuries caused as a result of global warming. The States’ alleged injuries include heat related deaths, increased smog, sea level rise, and destruction of wildlife habitat. The power companies argued the States could not directly trace their injuries to the power plants and further that the States’ desired remedy would not curb the global climate change problem.

The States want the power plants to reduce their carbon dioxide emissions by 3% for the next ten years. New York Solicitor General and Supreme Court advocate veteran, Barbara Underwood, argued on behalf of the States that the reductions were feasible and would not pass increased electricity costs onto consumers, which the power plants disputed. During her oral argument on the feasibility of reductions, Underwood paused after saying. “That may seem …” and Justice Scalia interjected with, “Implausible is the word you are looking for.”

Indeed the States are up against a skeptical Supreme Court. The justices questioned whether the case would open a floodgate to subsequent litigation against other energy producers. The justices also seemed to doubt whether a district court judge, without expertise or necessarily the resources to set emission standards for the plants, would be acting as a “Super-EPA” in formulating a decision. As part of deciding the case, a district court judge would have to balance the competing interests of impacts on jobs and energy costs against the benefits of public health and reduced environmental damage.

Initially, the States brought the public nuisance case in district court where it was dismissed. The district court ruled the States lacked standing because the case involved policy questions that the court determined were best decided by the executive and legislative branches of government and not the judiciary. The Second Circuit Court of Appeals in 2009 overturned the district court’s decision and held the plaintiffs did have standing because public nuisance cases, as part of well-settled torts law, do not involve political questions.

Interestingly, Obama Administration Solicitor General, Neal Katyal has joined the side of the power companies because the federally owned Tennessee Valley Authority is named in the dispute. Katyal’s presence has disappointed environmental advocates particularly because the Supreme Court traditionally gives deference to the Solicitor General’s view. The deference given to the Solicitor General’s position has made some believe the Supreme Court will reverse the Second Circuit’s decision and rule against the States.

As of now, it is unclear which way the Supreme Court will decide. What is clear is that this will be a landmark case both for the States and the power companies.

-Ashley Harvey, Legal Intern

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