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.