U.S. SC will consider states' global warming lawsuit

John O'Brien Dec. 6, 2010, 2:18pm


WASHINGTON (Legal Newsline) - The U.S. Supreme Court decided Monday to hear the appeal of power companies in a global warming lawsuit being watched by the Obama administration.

The justices announced they would consider the appeal of six power companies in a lawsuit brought by eight states, New York City and environmental groups. The lawsuit claims the power companies are creating a public nuisance with their emissions.

The companies are appealing a 2009 ruling from the U.S. Court of Appeals for the Second Circuit that allowed the case to proceed.

Solicitor General Neal Katyal filed a brief with the U.S. Supreme Court in August. It 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.

The Fourth Circuit has already sided with power provider Tennessee Valley Authority in a public nuisance lawsuit brought by North Carolina Attorney General Roy Cooper.

"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.

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

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