“EPA is doing its part now but it’s only at a proposed level,” she said. “It could take EPA years to act and their actions could be waylaid or blocked. Many regulations are proposed but few are actually executed.”
And she’s not alone in her thinking. Environmental attorney Jonathan Peress said in an interview that it was risky for the Obama administration to side with the utilities in this case.
“It’s way premature to make a determination that the Clean Air Act has displaced a common law public nuisance claim,” said Peress, the director of the clean energy and climate change program at the New Hampshire-based Conservation Law Institute. “That’s not a sound legal theory.”
While nuisance claims have a lengthy history in common law, Judy pointed out, the public nuisance strategy in this case is relatively new. Traditionally, nuisance claims are used to settle disputes between neighbors over offensive smells, noise and other annoyances.
Wending Its Way to Washington
When the lawsuit was initiated in 2004, the federal government had not yet been ordered to regulate greenhouse gas emissions as pollution. It wasn’t until 2007, with the Supreme Court decision in , that it became a possibility.
States involved in American Electric Power v. Connecticut endured their first setback in 2005 when a federal judge in New York ruled they couldn’t proceed with public nuisance lawsuits because they raised political issues that the court couldn’t resolve. Other states on board include California, Iowa, New Jersey, New York, Rhode Island, Wisconsin and Vermont.
However, the 2nd U.S. Circuit Court of Appeals gave the plaintiffs a path forward in 2009 by ruling that the utilities could be sued in federal court to slash the 650 million tons of carbon dioxide they emit annually. That prompted American Electric Power, Duke Energy, Southern Co., Xcel Energy and the federally operated Tennessee Valley Authority to fight back.
Justice Sonia Sotomayor will likely recuse herself because she previously served on the appeals court that heard the case. If the eight remaining judges reach a 4-4 decision, the appeals court decision would remain in effect.
A Better Route
Utilities are hoping the justices essentially kill the case by ruling that states and private parties can’t use the public nuisance law to force power plants to reduce their emissions. That would erode the ability of states and others to use emissions as grounds for a lawsuit, Peress said.
Allowing judges to order emission caps could transform the way this nation “produces and obtains energy, limit its supply, dramatically raise its cost and jeopardize reliable service to the public,” the utilities stated in a court brief.
On the other end of the spectrum, the states and environmental advocates want the high court to see the merit of their argument, thus likely allowing a lower court to sort out the details.
“Judicial review may be the best option to address global warming in light of legislative and executive inaction to curb human-induced climate change,” said Judy, the associate law professor.
She emphasized that this case should have been handled by lower courts all along, instead of reaching the Supreme Court prematurely. A Supreme Court decision would be more appropriate, she added, when Clean Air Act rules to regulate carbon emissions are fleshed out and have teeth.
A trial court judge or jury agreeing with the public nuisance claim, she said, could have fashioned a solution that compensates the states by forcing the offending utilities to make payments and/or pare down their carbon footprint.
Oral arguments are scheduled for spring, with a decision expected by July.
If the Supreme Court justices reverse American Electric Power v. Connecticut, Judy is fearful the judiciary branch will be watching the climate change drama unfold from the sidelines.
“EPA shouldn’t be allowed to say, ‘This is our job and only our job,’” she said. “We have a system of checks and balances. We can’t just sit around twiddling our thumbs. The regulation of greenhouse gases needs to have as many of our institutions addressing it as possible.”
Photo: Matthew G. Bisanz