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High Court Ruling Could Sideline Judiciary Branch from Key Role in Climate Change Debate

The regulation of greenhouse gases needs to have as many institutions addressing it as possible, experts say

By Elizabeth McGowan

Jan 6, 2011

WASHINGTON—Ask environmental advocates for their reaction to the Supreme Court decision to hear arguments in American Electric Power v. Connecticut case and you won’t hear much applause.

Instead, you’ll witness plenty of hand-wringing powerful enough to set flesh afire.

So, what’s all this fretting about?

On the one hand, conservationists are overjoyed by the timetable the released for grappling with greenhouse gas emissions from two of the country’s most prolific polluters—electric utilities and oil refineries.

But on the other hand, they fear it could gum up the high-profile case the Supreme Court has agreed to hear. The high court’s ruling could determine whether the courts remain crucial players in the effort to curb heat-trapping gases, or end up sitting it out.

Later this year the justices will be drilling down on three complex questions at the crux of the case. They will decide if states and private parties can use public nuisance law to sue electric utilities to cap their carbon dioxide emissions. It’s the first such suit related to climate change to reach the high court, and that development is being chalked up as a victory for the utilities.

"I think the Supreme Court got a little ahead of itself," Vermont Law School associate professor Martha Judy told SolveClimate News in an interview. "Given the political orientation of the court, I’m not surprised they accepted it. I had no doubt it would end up before them sooner or later. I just think it would have been better later."

What’s at Stake?

Connecticut, seven other states and New York City have joined with several land trusts as plaintiffs in the case. As attorney David Doniger explained, they will be pressing the justices to keep the courthouse doors open on climate change cases until and unless the executive branch actually sets standards that slice emissions.

Their opponents, five coal-burning power companies that operate facilities in 21 states, will be asking the Supreme Court to shut the courthouse doors on federal nuisance suits designed to rein in carbon pollution.

They maintain that any entity hurt by their carbon pollution should have to wait for the EPA to act. After all, if the utilities lose in court, they might have to close down their plants or compensate those harmed by the effects of global warming.

The NRDC is helping to represent the and the and the Open Space Conservancy, both of New York. All three private land trusts are at risk of losing coastal property due to a rise in sea levels.

“With some in Congress attacking EPA and the Clean Air Act,” Doniger said, “the federal courts are more important than ever to protect the health and welfare of millions of Americans put in danger of these power companies’ enormous carbon pollution.”

What galls the plaintiffs and many green groups is that lawyers with the Obama administration sided with the utilities’ plea that nuisance claims aren’t a good fit for the courts. The attorneys argued that such a suit would interfere with EPA’s efforts to tackle greenhouse gas emissions.

EPA Falling Short

Judy, the South Royalton, Vt., law professor, begs to differ with that assessment of EPA’s progress. The executive branch is trying to hold the courts at bay by overstepping and overstating EPA’s accomplishments thus far and displacing or undercutting the plaintiffs’ ability to sue, she said.

For one, the tailoring rule that took effect Jan. 2 encompasses only new or modified power plants and other major emitters. And two, the Supreme Court agreed to hear the case in early December, several weeks before the EPA announced plans to regulate emissions from utilities by May 2012 and oil refineries by November 2012.

Plus, Judy added, Congress and other entities are intent on challenging every move the EPA makes in deploying the Clean Air Act to control global warming.

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