Obama sides against states over global warming enforcement

John O'Brien Aug. 25, 2010, 4:32pm


WASHINGTON (Legal Newsline) - President Barack Obama's administration apparently agrees with a recent federal appeals court's decision that said lawsuits are not the proper way to regulate air quality.

Just a month after the U.S. Court of Appeals for the Fourth Circuit ruled North Carolina Attorney General Roy Cooper could not sue out-of-state power companies over alleged pollution by claiming they were a public nuisance, Obama is asking the U.S. Supreme Court to make a similar determination.

A year ago, the Second Circuit allowed a public nuisance lawsuit filed by eight states, New York City and environmental groups against six power plants to proceed.

Solicitor General Neal Katyal filed a brief with the U.S. Supreme Court Wednesday, according to a report in the New York Times.

The brief says the federal Environmental Protection Agency has the authority to determine the proper levels of emissions.

"That regulatory approach is preferable to what would result if multiple district courts -- acting without the benefit of even the most basic statutory guidance -- could use common-law nuisance claims to sit as arbiters of scientific and technology-related disputes and de facto regulators of power plants and other sources of pollution both within their districts and nationwide," the brief says.

The Plaintiff States are Rhode Island, New York, Connecticut, Vermont, California, New Jersey, Wisconsin and Iowa.

Katyal's brief was filed in support of Tennessee Valley Authority, one of the defendants. TVA was the winner in the recent Fourth Circuit decision.

"If courts across the nation were to use the vagaries of public nuisance doctrine to overturn the carefully enacted rules governing airborne emissions, it would be increasingly difficult for anyone to determine what standards govern," Judge Harvie Wilkinson wrote.

"Energy policy cannot be set, and the environment cannot prosper, in this way."

Wilkinson wrote that a "patchwork of nuisance injunctions" could lead to more pollution because it could lead to power companies utilizing areas with less stringent rules.

The other defendants in the case from the Second Circuit are American Electric Power, Duke Energy, Cinergy, Southern Co. and Xcel Energy.

From Legal Newsline: Reach John O'Brien by e-mail at jobrienwv@gmail.com.

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U.S. Supreme Court
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U.S. Environmental Protection Agency (EPA)
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