CLIMATE:

States' 'nuisance' argument seems to fall on deaf ears in Supreme Court

Taking up a high-stakes case on climate change, a majority of Supreme Court justices appeared hostile today as to whether states can regulate greenhouse gases as a public nuisance under federal common law.

Even the court's more liberal members gave little hope to the plaintiffs, six states, New York City and several land trusts, which want utilities that operate fossil fuel-fired electric power plants to reduce emissions by invoking federal "public nuisance" common law. Originally, eight states were involved, but two -- New Jersey and Wisconsin -- dropped out.

The plaintiffs in the closely watched case, American Electric Power v. Connecticut, argue that the power companies are contributing to a public nuisance by releasing greenhouse gases into the air.

Therefore, the states 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.

Separately, the Obama administration maintains that U.S. EPA, through its recent efforts to regulate greenhouse gas emissions, has "spoken directly to the question plaintiffs ask the courts to resolve."

The administration, which has the backing of 23 states, also asserts the plaintiffs lack standing to pursue the case.

In today's 80-minute argument, the court showed little inclination to focus on the standing question.

Instead, the justices were keen to reach the merits over whether the Clean Air Act and EPA rulemaking had displaced the federal common law.

Perhaps most surprising were the questions from liberal justices that seemed to indicate no sympathy for the plaintiffs and highlighted major differences with the 2007 case on carbon emissions, Massachusetts v. EPA.

Then, Justice Anthony Kennedy joined the liberal wing of the court in finding that carbon emissions could be regulated under the Clean Air Act.

This time around, Kennedy said nothing to encourage the plaintiffs. Justice Ruth Bader Ginsburg, a Democratic appointee who was also in the majority in the earlier case, went further in casting doubt on the plaintiffs' arguments.

Ginsburg told New York Solicitor General Barbara Underwood, who argued the case for the plaintiffs, that what the states were asking the courts to do seemed to be a role for the government.

"That just sounds to me what EPA does," Ginsburg said.

Judges do not have "the resources or the expertise" to make the kind of decisions about cutting emissions, including what type of technology to use, that EPA does, she added.

Justice Elena Kagan, another Democratic appointee, seemed to agree, saying that what the states wanted was "the type of thing administrative agencies do."

It was a line of inquiry enthusiastically followed by conservative members of the court, including Chief Justice John Roberts Jr.

In seeking to probe the limits of what the plaintiffs are seeking, he asked Underwood whether a judge could simply order a utility to shut down all its plants.

"I think that's a pretty big burden to impose on a district court judge," Roberts said.

One of the nine justices, Sonia Sotomayor, recused herself due to her earlier involvement in the matter when serving on the 2nd U.S. Circuit Court of Appeals, so in theory, the case could lead to a 4-4 split, although that now seems unlikely based on the argument.

Neither Sotomayor nor Kagan was on the court when Massachusetts v. EPA was decided.

A 4-4 split would leave the 2nd Circuit ruling in favor of the states intact, but the case would not be binding upon other federal courts of appeal.

Whatever conclusion the court reaches, it could affect another case on the same issue. Kivalina v. ExxonMobil is in the 9th U.S. Circuit Court of Appeals and has yet to be argued.

Another case, this time out of North Carolina, that focused on an attempt to regulate emissions under state common law was brought to an end last week when the Tennessee Valley Authority entered into a massive settlement with the federal government and others over claims its plants were violating air pollution laws (Greenwire, April 14).

The 4th U.S. Circuit Court of Appeals had ruled against the state. That ruling will now stay on the books.

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