The top government lawyer who successfully argued a major climate case before the Supreme Court this year has criticized his erstwhile opponents for claiming states should be able to sue polluters over greenhouse gas emissions under federal common law.
Neal Katyal, who was acting solicitor general for the Obama administration at the time but is now in private practice, believes that the question of how to reduce emissions is not one that courts can handle.
The plaintiffs -- six states, New York City and several land trusts -- invoked "public nuisance" law in trying to force utilities that operate fossil fuel-fired electric power plants to reduce emissions.
In June, the Supreme Court ruled 8-0, with Justice Sonia Sotomayor recused, that the Clean Air Act and the Obama administration's efforts to regulate emissions had displaced the states' public nuisance argument (Greenwire, June 20).
In explaining his position, Katyal -- who personally argued the case -- noted that emissions policy is too complex a question for courts to rule on.
"I have to try really hard to come up with a lawsuit that's less appropriate for the federal courts to resolve," he said in a recent interview with Greenwire.
Environmentalists may be frustrated at the government's handling of the issue, but "it's such a dangerous thing for desperation to drive litigation," he added. "These are arguments that are multifaceted, that make expert resolution not just appropriate but necessary."
In its ruling, the Supreme Court did not address whether plaintiffs could sue under state common law, a question that courts are likely to address at some point as litigation continues, but Katyal also dismissed that approach.
"As the court recognized, there are problems with federal common law causes of action," he said. "Why should state common law of Rhode Island dictate national greenhouse gas policy?"
Matt Pawa, who represented the land trusts in American Electric Power, took issue with some of Katyal's remarks, saying the government's reading of the law would mean that plaintiffs could not make public nuisance claims in a whole range of scenarios.
"Does that mean polluters are completely immune?" he said.
Pawa also noted that the Supreme Court did not embrace one of Katyal's arguments: that the plaintiffs lacked "prudential standing" to sue, meaning that the claims were too generalized for courts to adjudicate on the matter.
Having left the administration, Katyal -- a tenured professor at Georgetown University Law Center -- has now joined the Hogan Lovells law firm as the Washington-based co-chairman of the appellate practice.
Katyal served as acting solicitor general for just over a year following the appointment of then-Solicitor General Elena Kagan to the Supreme Court.
In June, the Senate confirmed Donald Verrilli, an experienced appellate lawyer, as Kagan's permanent replacement.
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