Challenging the appropriateness of using the courts to address climate change, Indiana and 11 other states are urging the Supreme Court to overturn an appeals court decision that would allow greenhouse gas emitters to be sued for their contribution to global warming.
The case, American Electric Power v. Connecticut, is headed to the Supreme Court this fall after the 2nd U.S. Circuit Court of Appeals decided last year that other states, including Connecticut and New York, had standing to sue coal-fired utilities for their share of the damage caused by climate change.
Their lawsuit, joined by environmental advocacy groups and New York City, argues that greenhouse gas emissions can be limited by the courts because they are a "public nuisance" under common law.
The preliminary decision to let the case proceed has now drawn opposition from Indiana, Arkansas, Hawaii, Kansas, Kentucky, Nebraska, North Dakota, Ohio, Pennsylvania, South Carolina, Utah and Wyoming, which say that it would be an "impermissible intrusion into the political realm" to let federal judges set source-by-source limits on greenhouse gases.
The friend-of-the-court brief filed Friday by Indiana Attorney General Gregory Zoeller (R) neither supports nor opposes greenhouse gas regulations but argues that question should be left to the other two branches of government. With a cap-and-trade program on the table in Congress and U.S. EPA rolling out greenhouse gas regulations under the Clean Air Act, it is especially important that federal courts stay out of the issue, the brief says.
"Reasonable people disagree on many levels over the extent to which greenhouse gas emissions, and especially CO2 emissions, should be regulated. Given that every industry, and indeed every living mammal, constantly emits CO2, such emissions cannot simply be banned outright, no matter what the harm to the environment," Zoeller wrote. "Someone has to make a policy determination as to how much is acceptable and how much is too much. That someone should not be the federal judiciary."
Bruce Myers, senior attorney at the Environmental Law Institute, said it is difficult to characterize the stances of the group of states that signed the brief. While some individual states might support greenhouse gas regulations, he said, state agencies and state-owned utilities are major greenhouse gas emitters themselves, making them potential targets for similar lawsuits under the nuisance theory.
But the brief seems to demonstrate specific dissatisfaction with nuisance litigation, rather than greenhouse gas regulations in general.
It was not signed by states such as Texas and Virginia, which have been the most vocal critics of federal greenhouse gas regulations. Though most of the states that signed the brief have opposed EPA's climate program, the brief was also joined by Pennsylvania, which has supported EPA's new regulations in court, and four other Democratic-led states -- Arkansas, Kansas, Ohio and Wyoming -- that have steered clear of that court battle altogether.
Bryan Corbin, a spokesman for the Indiana attorney general, said his office wanted to weigh in on the case primarily because of the implications for state sovereignty.
"To the extent that this lawsuit would enable a court to cap CO2 emissions that states would permit," the brief says, "allowing some states to seek common-law injunctions against industries in other states would undermine the entire state-federal regulatory scheme."
Chance of review
When the Supreme Court returns from its summer recess next month, it will be tasked with deciding whether to review the case.
If the Supreme Court does not intervene, the decision from the 2nd Circuit would remand the case to a federal district court for further proceedings. The case would then be considered on the merits, where some legal experts expect it to falter. But the 2nd Circuit's decision would set a powerful precedent for environmental litigation, encouraging more climate lawsuits in the absence of a nationwide scheme to limit planet-warming emissions.
Though the court accepts a small fraction of all petitions for review, the justices could be swayed by a surprisingly forceful push by the Obama administration, which otherwise wants to limit greenhouse gas emissions. The administration's brief places a "finger on the scale," making it more likely that the Supreme Court will grant review, Myers said.
The administration's brief, which was filed last month by acting Solicitor General Neal Katyal, stunned environmentalists who expected the White House would avoid criticizing a ruling that could boost the chances of climate legislation in Congress. Saying that EPA's new greenhouse gas regulations have displaced common law, the brief asked the justices to vacate the 2nd Circuit's decision and remand the case for further proceedings in light of those developments (Greenwire, Aug. 25).
Though some environmental advocates described the brief as a betrayal by an administration that has vowed to address climate change, the administration was forced to walk a fine line with its brief, Myers said. The Obama administration had to defend the Tennessee Valley Authority, which was a defendant in the case, but it probably did not want to "close the door" for similar environmental cases brought by citizens, he said.
Katyal's brief asked the Supreme Court to avoid delving into constitutional questions, such as whether limiting greenhouse gas emissions would present political questions that courts cannot decide.
The states, however, have asked the Supreme Court to review the case itself and overturn the 2nd Circuit's decision.
Click here to read the states' brief.