U.S. SC: States cannot proceed with emissions lawsuits

Jessica M. Karmasek Jun. 20, 2011, 12:58pm

Ruth Bader Ginsburg

WASHINGTON (Legal Newsline) - The U.S. Supreme Court, in an 8-0 decision Monday, said an appeals court erred in ruling that federal judges may set limits on greenhouse gas emissions.

The Court, in its 16-page opinion, ruled that eight states, New York City and three nonprofit land trusts cannot proceed with their lawsuits seeking to cap emissions by five major electric power companies.

Those states included California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont and Wisconsin. The power companies included American Electric Power Co., Southern Co., Xcel Energy Inc., the Tennessee Valley Authority and Cinergy Corp., later acquired by Duke Energy Corp.

In their complaints, the plaintiffs alleged the power companies were the largest emitters of carbon dioxide in the nation.

By contributing to global warming, they asserted, the companies' emissions "substantially" and "unreasonably" interfered with public rights and were in violation of the federal common law of interstate nuisance and state tort law.

The plaintiffs asked for a decree setting carbon dioxide emissions for each company at an initial cap, to be further reduced annually.

A district court dismissed the plaintiffs' lawsuits as presenting nonjusticiable political questions, but the Second Circuit of Appeals in New York reversed. The appeals court held that the plaintiffs had stated a claim under the federal common law of nuisance and that the Clean Air Act did not displace federal common law.

The nation's high court reversed the appeals court's ruling.

"The judgments the plaintiffs would commit to federal judges, in suits that could be filed in any federal district, cannot be reconciled with the decision making scheme Congress enacted," Justice Ruth Bader Ginsburg wrote for the Court.

"The Second Circuit erred, we hold, in ruling that federal judges may set limits on greenhouse gas emissions in face of a law empowering the (Environmental Protection Agency) to set the same limits, subject to judicial review only to ensure against action 'arbitrary, capricious... or otherwise not in accordance with law.'"

The Clean Air Act and the Environmental Protection Agency action the Act authorizes, the Court said, displace the claims the plaintiffs seek to pursue.

The Court did not address alleged state-law claims by the plaintiffs. It remanded the case to the lower courts to consider those issues.

Connecticut Attorney General George Jepsen said he was "pleased" with the Court's ruling.

"When the Office of the Attorney General began to litigate this issue in 2004, the federal government was entirely unwilling to take any responsibility for the regulation of greenhouse gases. It was, therefore, important to pursue federal common law public nuisance claims against carbon-dioxide emitters," he said in a statement.

"We are disappointed that the Court acted before federal regulation is fully in place, but we are pleased that as a result of our work and that of many others, federal regulation of this critical issue is now in process."

Jepsen continued, "We have always said that strong federal regulation is the best way to protect our environment from the long-term destructive effects of greenhouse gases. We are pleased that the Supreme Court recognizes that the EPA must act to curb emissions that contribute to climate change. We will continue to work to ensure that our residents are protected, for this generation and the next."

Justice Sonia Sotomayor took no part in the consideration or decision of the case.

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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