Four investor-owned utilities and the U.S. Department of Justice (DOJ) have filed briefs with the U.S. Supreme Court in a high-profile “public nuisance” case in which states and environmental groups allege that greenhouse gas (GHG) emissions from four investor-owned utilities and the Tennessee Valley Authority (TVA) have contributed to climate change.
The briefs follow a decision by the Supreme Court to hear the case. The power companies and the DOJ are contesting a decision by the Second Court of Appeals in September 2009, which reversed a district court ruling and rejected a variety of defenses asserting that climate change–related damages raise “political questions” and are thus not suitable for judicial resolution.
The lawsuit, Connecticut et al. v. American Electric Power Corp., 582 F.3d 309 (2d Cir. 2009), was brought against American Electric power (AEP), Cinergy Corp. (which merged into Duke Energy), Southern Co., Xcel Energy, and the TVA by eight states—Connecticut, New York, California, Iowa, New Jersey, Rhode Island, Vermont, and Wisconsin—and the City of New York. Three land trusts are also involved: Open Space Institute, Inc.; Open Space Conservancy, Inc.; and Audubon Society of New Hampshire. The states and associated parties sought an injunction requiring emission-reductions from fossil fuel–fired facilities owned by the defendants. The plaintiffs in that case had cited a variety of climate change–related injuries, saying carbon dioxide emitted by the power plants constituted a “public nuisance.”
The brief, filed by the DOJ’s Acting Solicitor General Neal Kumar Katyal for the TVA, argues that the states and other parties lacked “prudential standing” and that their suit should therefore be dismissed.
“Plaintiffs bring claims under the federal common law of public nuisance against six defendants alleged to emit greenhouse gases contributing to climate change,” the brief argues. “But virtually every person, organization, company, or government across the globe also emits greenhouse gases, and virtually everyone will also sustain climate-change-related injuries. Principles of prudential standing do not permit courts to adjudicate such generalized grievances absent statutory authorization, particularly because EPA, which is better-suited to addressing this global problem, has begun regulating greenhouse gases under the CAA.”
Likewise, in a brief filed with the other three investor-owned utilities, AEP argues that the states’ case had no standing because it could not show that the “alleged harm” from emitted GHGs was fairly traceable and redressable.
“According to plaintiffs’ own allegations, climate change instead results from greenhouse gas emissions from billions of independent actors over centuries—emissions that have mixed in undifferentiated fashion in the atmosphere to gradually increase average global temperatures.”
The appellants also argue that the Second Circuit erred in finding that the political doctrine bars the courts from considering the plaintiffs’ claims and that federal common law does not recognize a cause of action for climate change-related injuries.
Lawmakers have also reportedly been sounding in. House Energy and Commerce Committee Chairman Fred Upton (R-Mich.) and Sen. James Inhofe (R-Okla.)—who have teamed to push legislation through Congress that strips the Environmental Protection Agency of its authority to regulate GHGs—filed an amicus brief with the Supreme Court on Monday.
“[C]ourts are not equipped to make judgments about the appropriate emissions standards for utilities located throughout the country,” the lawmakers wrote. “Judicial establishment of such standards would violate decades of Supreme Court precedent and unconstitutionally interfere with Congressional and Executive branch efforts to address climate change-related matters.”
The Supreme Court is expected to hear oral arguments in April. As POWERnews previously reported, the much-watched case will be decided by eight of the nine Supreme Court justices. Justice Sonia Sotomayor, who was a member of the appellate court panel that reversed the district court decision, has recused herself. This means that the court could be split 4–4 on the issue, experts say.
Four of the eight justices dissented in Massachusetts v. EPA (2007), the landmark case that held that GHG could be regulated under the Clean Air Act if the EPA found them to endanger public health and welfare.
Sources: POWERnews, DOJ, AEP, Politico