States Ask Supreme Court to Decide on Public Nuisance Case

Indiana and 11 other states filed an amicus brief with the U.S. Supreme Court last week, asking it to overturn a September 2009 decision by 2nd U.S. Circuit Court of Appeals that allows greenhouse gas emitters to be sued for contributing to a public nuisance—climate change and global warming.

At the heart of the case, American Electric Power v. Connecticut, is whether the courts can exercise judicial authority over climate change lawsuits under federal common law. After consideration of a district court decision, the appeals court last year rejected a variety of defenses, asserting that climate change–related damages raise “political questions” and are thus not suitable for judicial resolution.

But, in a brief filed with the Supreme Court, attorney generals from the 12 states (Indiana, Arkansas, Hawaii, Kansas, Kentucky, Nebraska, North Dakota, Ohio, Pennsylvania, South Carolina, Utah, and Wyoming) and other parties, including environmental groups and New York City, said that the issue was of “extraordinary national importance.” Neither supporting nor opposing greenhouse gas regulations, they argue that the question be left to the other two branches of government. It was imperative that the court considered the case because, if allowed to proceed in the district court, the issue would “embroil the federal judiciary in one of the most high-profile and contentious political debates of our time,” the petitioners said.

“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," the brief said. "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."

The petitioners said that it would be an “impermissible intrusion into the political realm to let federal judges set source-by-source limits on greenhouse gases”—particularly with Congress contemplating climate change legislation and the Environmental Protection Agency (EPA) finalizing regulations.

The court is likely to hear the case, experts say, because the Obama Administration has weighed in on the case. Last month, on behalf of the Tennessee Valley Authority (TVA), acting Solicitor General Neal Katyal filed a brief that supported a petition to the Supreme Court by other defendants in AEP v. Connecticut, utilities that asked the high court to reject the argument that greenhouse gas emissions can be addressed through public nuisance suits. Along with the TVA, defendants included American Electric Power Co., Duke Energy, Southern Co., and Xcel Energy.

Katyal asked the court to vacate the decision and remand the case to the 2nd Circuit for further proceedings, taking into account that the administration is taking steps to regulate greenhouse gases. Katyal argued that the EPA’s recently finalized regulations on greenhouse gases have displaced common law.

For more on the issue of climate change–related lawsuits, see “Climate Change: Avoid Political Thickets” in the July issue of POWER.

Sources: POWERnews, TVA, U.S. Supreme Court