LITIGATION:

Obama admin explains position in Supreme Court 'nuisance' case

The Obama administration yesterday explained in detail why it believes the Supreme Court shouldn't conclude, in a case to be argued in April, that greenhouse gas emissions can be regulated as a "public nuisance" under federal common law.

In the merits brief filed in American Electric Power v. Connecticut, the administration largely stuck to the position outlined in an earlier brief (Greenwire, Aug. 25, 2010).

The case concerns the efforts of eight states, New York City and several land trusts to require utilities that operate fossil fuel-fired electric power plants to reduce emissions by invoking federal common law.

The plaintiffs argue that the power companies are contributing to a public nuisance by releasing greenhouse gases into the air.

They say they can turn to the courts to require the defendants to reduce emissions.

American Electric Power Co. Inc. and several other power companies maintain that the Clean Air Act supplants the federal common law when it comes to greenhouse gas emissions.

The New York-based 2nd U.S. Circuit Court of Appeals ruled in favor of the plaintiffs.

The Obama administration had originally urged the Supreme Court to send the matter back to the appeals court so it could examine the issues again in light of recent greenhouse gas regulations approved by U.S. EPA.

The Supreme Court agreed in December to take the case (Greenwire, Dec. 6, 2010). Arguments will be in April with a decision due by the end of June.

In the latest brief, acting Solicitor General Neal Katyal advocates for a ruling that would prevent public nuisance claims from being made on the basis that there is no "prudential standing," meaning that the allegations are too vague for courts to consider them.

"Principles of prudential standing do not permit courts to adjudicate such generalized grievances absent statutory authorization," Katyal said.

Furthermore, EPA, through its recent efforts to regulate greenhouse gas emissions, has "spoken directly to the question plaintiffs ask the courts to resolve," he added.

The case could end up as a 4-4 split because Justice Sonia Sotomayor, who previously served on the 2nd Circuit, has recused herself.

Click here to read the brief.