States Ask U.S. Supreme Court to Decide on Power Plant Emissions Issue

New York City and six states have asked the U.S. Supreme Court to decide on whether state and local governments have the right to sue private power companies under a common-law tort of public nuisance for their greenhouse gas (GHG) emissions.

Leading a coalition that includes New York State, California, Connecticut, Iowa, Rhode Island, Vermont, and the City of New York, New York Attorney General Eric Schneiderman filed a brief with the high court in the landmark case, AEP v. Connecticut et al.

That case had been brought against American Electric Power (AEP), Southern Co., Duke Energy, Xcel Energy, and the Tennessee Valley Authority (TVA) by eight states, the City of New York, and three private land trusts. The states and other parties had 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 U.S. Supreme Court in December agreed to hear the case, granting a petition filed by the power companies—and supported by the Obama administration, which filed a separate brief on behalf of the federally owned TVA.

On Thursday, Attorney General Schneiderman presented three questions key to the Supreme Court. The first was whether the states had standing to sue the companies under the “public nuisance” tort when the complaint alleges that power plants “are causing or threatening harm” to state and local government property and natural resources, and if they could show GHG reductions could reduce the risk and magnitude of these damages.

The second question involved whether federal common-law nuisance can be resolved on the basis of judicially manageable standards, without implicating constitutional separation-of-powers concerns that would require dismissal of the claims as nonjusticiable political questions.

The third question asked whether the states and other parties have federal common-law nuisance claims that are not displaced by the federal Clean Air Act.

“Climate change threatens our economy, our health and our natural resources. This lawsuit protects New Yorkers and our environment from the serious harms caused by unrestrained greenhouse gas pollution,” said Attorney General Schneiderman in a statement on Thursday. “As some of the biggest global warming polluters in the country, these five companies produce 10 percent of the nation’s carbon dioxide emissions. To protect our future, we must have the right to hold these polluters accountable in a court of law.”

Schneiderman alleged that combined, the power companies put out 10% of “all domestic human-generated carbon dioxide.” He added that they own or operate 174 fossil fuel–burning power plants in 20 states “that emit about 650 million tons of carbon dioxide each year—almost a quarter of the U.S. utility industry’s annual carbon dioxide emissions.”

In 2009, the U.S. Court of Appeals for the Second Circuit upheld the states’ right to bring this lawsuit. The power companies in August 2010 filed an appeal with the Supreme Court.
A separate brief was filed by three land trusts: Open Space Institute Inc., Open Space Conservancy Inc., and Audubon Society of New Hampshire.

Sources: POWERnews, Office of the New York Attorney General