Climate Change Lawsuit Heads to Supreme Court
Apr 15, 2011
By Kristen Friend, staff U.S. Supreme Court and Congress writer – April 15, 2011
The Supreme Court will hear a case next week that will determine whether federal judges have a legitimate role in regulating greenhouse gas emissions. The case could open the door for the federal judiciary to begin shaping climate change policy in the event of continued inaction by the president or Congress.
Placing limits on greenhouse gas emissions is something typically left to congressional lawmakers or the president. Crafting policy in response to climate change is a complex process in which courts tend to avoid involvement. In the face of a reluctance to act on the federal level, states and local governments are increasingly using litigation in an attempt to force polluters to change their policies. 
One such case has finally made it to the Supreme Court, which is now being asked whether suit should be allowed to proceed. The case originated in 2004, when eight states and three private land trusts, led by the State of Connecticut, sued several utility companies in an attempt to force them to cap emissions and limit their contributions to climate change. 
The coalition claims that green house gas emissions produced by the fossil fuel-powered utilities are a “public nuisance.” Public nuisance claims rely on a centuries old concept derived from English common law. A public nuisance is something that unreasonably interferes with the “health, safety or morals” of a community.  Greenhouse gases, the coalition argues, constitute a public nuisance since they cause demonstrable harm to both people and property. The suit asks that emissions be subject to judicial scrutiny and regulation and requests a judicial order capping greenhouse gas emissions along with rules setting a timetable for future emission cuts. 
In 2005, a judge dismissed the case, saying that it involved a political issue that should not be left to courts to decide. The ruling was uncontroversial. Other climate change nuisance cases have also been dismissed in recent years. In Comer v. Murphy Oil, Gulf Coast residents sued several oil refineries, claiming emissions from the refineries had contributed to global warming and increased the strength of and damage done by Hurricane Katrina.  In the case Native Village of Kivalina v. Exxon, Residents of an Alaskan barrier island sued over the damage global warming induced rising water levels were causing to their homes and community.  Both cases were also dismissed at the district level.
The U.S. Court of Appeals for the 2nd Circuit reversed the dismissal in 2009, to the surprise of the legal community and many environmental groups.  The appeals court found that judges could resolve disputes over harm caused by climate. It also found that the defendants had standing; both states and some private entities have the legal right to pursue environmental public nuisance claims. Significantly, the appeals court also addressed the issue of the Clean Air Act and EPA regulations, finding that Congress did not invalidate common law nuisance claims by passing the Clean Air Act. At the time, the EPA had not yet begun to regulate greenhouse gases. The judges stated that even should the EPA being regulating greenhouse gases, only rules applied to the specific types of stationary power plants involved in the suit would render the case moot. 
The utilities appealed to the Supreme Court to reverse the appellate court ruling. In taking the case, the Court will be considering three questions: whether the parties have standing to sue, whether the federal common law public nuisance tort can address the issue of capping greenhouse gas emissions, and whether the questions raised by the case can be resolved by, “judicially discoverable and manageable standards.” 
Utility companies, some states, business groups and the Obama administration all claim that the courts have no authority to regulate polluters. In its brief in support of the petitioners, the U.S. Chamber of Commerce claims that the 2nd District Court overstepped its authority, saying, “If the decision of the Second Circuit is affirmed, this suit – and the countless others that inevitably follow – will destabilize our economy, undermine our democratic process, and impact sensitive foreign policy considerations.” 
The Obama administration issued a brief arguing that only the legislative and executive branches should be responsible for crafting carbon emissions rules. The brief also points to new EPA regulations as cause to render the suit unnecessary. 
Environmental groups, attorneys and other states have issued briefs in support of the respondents. A brief submitted by the states of North Carolina, Illinois, Maryland, and Massachusetts argues that environmental nuisance claims have a long history in the United States. The brief also states that congress and the EPA may not always act in the best interest of the states, saying, “too many times States have seen EPA fail to meet congressional deadlines to promulgate or update pollution control standards.” The states continue, claiming, “Even if resort to public nuisance actions may only be sporadic, it is nonetheless vital when it is needed.” 
Regulation of greenhouse gas emissions is a contentious topic among lawmakers; despite the fact that the scientific community has come to a general consensus that greenhouse gases are a “primary driver” of climate change.  In 2007, the Supreme Court found that carbon emissions are subject to regulation under the Clean Air Act and ordered the Environmental Protection Agency to determine whether carbon, the most common greenhouse gas, endangers the public health and welfare.  In 2009, the House passed the American Clean Energy And Security Act, which would have establish a limited cap and trade system for emissions. In 2010, under current EPA administrator Lisa Jackson, the agency issued new rules for greenhouse gases applying to light vehicles and large power plants, to be phased in beginning early this year. 
While lawmakers have been flirting with the idea of dealing with greenhouse gas emissions and climate change, little has been done on the issue in terms of concrete policy. Conservatives, under pressure from business groups and some hard right climate change deniers, are running away from the idea of cap and trade and regulation of carbon emissions as quickly as they can. On again off again presidential candidate Newt Gingrich claimed in the past that a cap and trade system was, “a package there that’s very, very good,” and something he would, “strongly support.”  Realizing that he might be caught openly agreeing with Democrats, Gingrich backtracked, calling President Obama’s initial cap and trade proposal “absolutely destructive.”  Former governors and potential 2012 Republican presidential contenders Tim Pawlenty and Sarah Palin have made similar flip flops, with Pawlenty going so far as to apologize for his former support of greenhouse gas regulation. 
Lawmakers from both parties are attempting to modify or overturn the new EPA rules. During recent budget debates, House Republicans managed to pass a rider stripping the EPA of its authority to regulate greenhouse gases. Senator Jay Rockefeller (D-W.Va) has introduced the EPA Stationary Source Regulations Delay Act, which would suspend implementation of the new rules on power plants for two years.
There is a risk that crafting environmental regulations on a case-by-case basis will lead to a somewhat chaotic web of overlapping or even conflicting regulations. And if the Court decides that the suit can proceed, federal courts will almost certainly see an increase in litigation attempting to control polluters and craft environmental regulations. Skepticism over how congress and the administration will ultimately act to control climate change is a driving force behind much public nuisance litigation, and environmental groups see the courts as an alternative route to implementing real policy changes. Litigation could be used as a bargaining chip for environmental groups and states wishing to set tougher standards than the EPA. 
Justice Sonya Sotomayor has recused herself because she was involved in the case at the appellate level. Arguments are scheduled for April 19. The case is American Electric Power Co., Inc. v. Connecticut.
4. Brief for Respondents Connecticut, New York, California, Iowa, Rhode Island, Vermont, and The City of New York, http://www.americanbar.org/content/dam/aba/publishing/previewbriefs/Other_Brief_Updates/10-174_respondent_connecticut.pdf
10. Brief for the Chamber of Commerce of the United States of America in Support of Petitioner, http://www.americanbar.org/content/dam/aba/publishing/previewbriefs/10_174_brief_updates/10-174_PetitionerAmCuChamberofCommerce.pdf
12. Brief for the States of North Carolina, Illinois, Maryland, and Massachusetts in Support of Respondents, http://www.americanbar.org/content/dam/aba/publishing/previewbriefs/10_174_brief_updates/10-174_respondentamc4states.authcheckdam.pdf
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