Obama Administration Opposes Use of Nuisance Claims to Address Climate Change
A group of eight states and conservation groups ("Plaintiffs") have been pushing a massive federal nuisance claim against utilities. The Plaintiffs claim that major emitters of carbon dioxide in twenty states have created, contributed to, or maintained a common-law public nuisance by contributing to global warming thereby injuring States and landowners feeling the impacts of climate change. (See prior post discussing 2nd Circuit decision to let nuisance action stand) .
The Plaintiffs claims were dismissed by the district court. Their suit was reinstated when Plaintiffs won their appeal in the Second Circuit Court of Appeals. The Appeals Court determined the Plaintiffs had a right to seek relief under federal common law nuisance doctrines. Now the utilities are requesting the Supreme Court reverse the Appeals Court.
Two critical legal questions at issue throughout the litigation have been:
- Political Question- Resolution of the issue is best suited for Congress and not the Court because the relief sought would raise complex issues balancing economic, environmental, foreign policy, and national security.
- Whether common law has been displaced by Congressional or Executive Branch actions regulating greenhouse gases.
The 2nd Circuit Court of Appeals determined the claims did not raise a "political question" and were not displaced by the mere presence of regulatory authority in the Clean Air Act. ( Federal common law claims are "displaced" whenever Congress establishes a mechanism to address the problem.) Now the utilities have petitioned the U.S. Supreme Court to hear their appeal of the lower Appeals Court decision.
In a surprise to environmentalists, the Department of Justice (DOJ) filed a brief in support of the utilities appeal to the Supreme Court. In its brief, DOJ argues that EPA, since the 2nd Circuit Court of Appeals decision was rendered, has issued a series of regulatory actions thereby displacing the common law claims of the plaintiffs. These include:
- Finalization of the "endangerment finding"
- Regulation of greenhouse gas emissions (GHGs) from motor vehicles- light duty vehicle standards
- Issuance of the "Tailoring Rue" which will subject new or expanded major emitters of GHGs to federal permitting requirements
- U.S. EPA is developing New Source Performance Standards for existing major emitters
While EPA regulatory actions is not completed, there actions may be sufficient for the Supreme Court to ultimately determine common law rights have been displaced. However, industry has also filed challenges to every regulatory action cited above. Those challenges may give the Court pause in dismissing the Plaintiffs claims.
DOJ's brief in support of the utilities came as a major surprise to some environmental groups. This from the Mother Jones website:
This is cold comfort to environmentalists, who are anxious that the administration isn't moving fast enough on those regulations. "It reads like a Bush administration brief," Matt Pawa, an environmental lawyer representing the plaintiffs in this case, told Mother Jones. "It felt like being stabbed in the back. The Obama administration claims to care about global warming, so why is it opposing an effort curtail greenhouse gas emissions from coal-fired power plants?"
Why is the Obama Administration opposing this effort? Because having the Courts establish climate change regulation would be chaotic. Here are some good quotes from the DOJ brief:
[Plaintiffs] are but a tiny subset of those who could allege they are injured by carbon-dioxide emissions that have contributed or will contribute to global warming...Moreover, global warming's effect will not be limited to landowner; they will also be felt by governments, individuals, corporations, and interest groups throughout the Nation and around the world.
...Any potential plaintiff could claim to have been injured by any (or all) of the potential defendants. The medium that transmits injury to potential plaintiffs is literally the Earth's entire atmosphere--making it impossible to consider the sort of focused and more geographically limited effect characteristic of traditional nuisance suits targeted at particular nearby sources of water or air pollution.
The practical reality is that Courts are ill-equipped to address climate change. How could they possibly be in the best position to address issues such as:
- What percentage of reductions should be required and over what time period?
- What sources should be required to reduce emissions?
- What technologies are viable and should be employed?
- How does forcing reductions by select emitters balance with similar emitters elsewhere in the country or the world?
- When are the costs of compliance too significant?
- How will reductions be monitored and enforced?
While the pace of Congressional action by be slow, turning to the Courts to develop perhaps the most complex, costly and extensive environmental regulatory scheme ever contemplated would not be wise.
As reported in the 
However, it becomes more and more difficult to achieve standards as they become more stringent. Many businesses have already been squeezed hard to reduce their emissions. The cost to achieve additional reductions will be greater. .png)
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The Federal Court of Appeals (2nd Circuit) issued a major .gif){kind=logo}
The Obama Administration announced it would review the revised ozone standard of .75 ppb that was previously established by the Bush Administration. The Obama Administration has said if they decide to revise the ozone standard below .75 ppb they will announce it by December of 2009 and finalize the standard by August 2010. 
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More rumblings that EPA may move forward with regulation of greenhouse gases under its existing authority under the Clean Air Act. It appears EPA has started to rattle its saber in an effort to re-energize the cap-and-trade proposal currently in the Senate..jpg)
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Democratic leaders of the US House Energy and Commerce Committee agreed to hold another hearing on climate change legislation on May 1. As discussed by commentators with the 
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In accordance with the FY2008 Consolidated Appropriations Act, 
In a dramatic reversal from the Bush Administration, the Department of Justice and U.S. EPA are renewing their New Source Review enforcement efforts against coal-fired power plants. The NSR lawsuits originally commenced during the Clinton years have resulted in billions of dollars in new controls and hundreds of millions in civil penalties. 
There has been major developments as a result of litigation, policy, rulemaking and legislation in the last few weeks relating to climate change and coal fired power plants. Some changes are a result of outstanding litigation. However, the most significant changes are indicative of the sea change that is occurring at the federal level under the Obama Administration relative to climate change. 
Governor Ted Strickland made his State of the State speech today. While almost the entire speech was focused on education there were a few interesting nuggets relative to Ohio's progress in developing green jobs. 
In remarks titled "from peril to progress", the President set forth bold action yesterday that will inevitably lead to full regulation of CO2 and greenhouse gas emissions. The President ordered a "vigorous review" of California's request to regulate greenhouse gas emissions which had been previously denied by the Bush Administration. .jpg)
Talk about your pro-bowl quality punts...