Daily Environment Report™
Source: Daily Environment Report: News Archive > 2011 > February > 02/02/2011 > News > Climate Change: Government Petition Urges Supreme Court To Reject Nuisance Suit on Narrow Grounds
Climate Change
Government Petition Urges Supreme Court To Reject Nuisance Suit on Narrow Grounds
The federal government Jan. 31 asked the U.S. Supreme Court to overturn on narrow grounds a court of appeals decision allowing several states to continue with their public nuisance lawsuit against American Electric Power Co. and other utilities for their greenhouse gas emissions (American Electric Power Co. v. Connecticut, U.S., No. 10-174, brief filed 1/31/11).
The brief filed by Acting Solicitor General Neal Katyal asks the court to reverse a decision by the U.S. Court of Appeals for the Second Circuit on similar grounds to those Katyal advocated in a brief filed Aug. 24 in support of the Supreme Court hearing the case (164 DEN A-10, 8/26/10).
In the latest brief, filed on behalf of the Tennessee Valley Authority, the government said the original plaintiffs lacked “prudential standing” and that their lawsuit should be dismissed.
Greenhouse gases are emitted by “virtually every person, organization, company, or government across the globe,” the government said, “and virtually everyone will also sustain climate-change-related injuries.”
“Principles of prudential standing do not permit courts to adjudicate such generalized grievances absent statutory authorization, particularly because EPA, which is better-suited to addressing this global problem, has begun regulating greenhouse gases under the [Clean Air Act],” the TVA brief said. “As a result, plaintiffs' suits must be dismissed.”
The Environmental Protection Agency began regulating greenhouse gas emissions from large new and modified sources in January, although members of Congress are moving to delay or block EPA's authority to do so. EPA also is planning in 2011 to propose emissions limits for electric power plants and refineries.
Second Circuit Decision
The Second Circuit decision in September 2009 allowed Connecticut, seven other states, New York City, and three land trusts to proceed with a lawsuit against American Electric Power, the Tennessee Valley Authority, and other utilities. The lawsuit alleged the power companies' carbon dioxide emissions constituted a nuisance under federal common law (Connecticut v. American Electric Power Co., 582 F.3d 309, 69 ERC 1385 (2d Cir. 2009)).
The U.S. District Court for the Southern District of New York had dismissed the lawsuit in 2005, holding that the claims represented a political question not under the jurisdiction of the courts (Connecticut v. American Electric Power Co., 406 F. Supp. 2d 265, 268 (S.D.N.Y.)).
The Supreme Court granted “certiorari,” agreeing to hear the case, Dec. 6 (233 DEN A-2, 12/7/10)
Government's Position
In its brief, the government asked the court not to consider broader standing issues raised by American Electric Power and other utilities when they petitioned the court to hear the case and in their brief, also filed Jan. 31.
The government also asked the court not to consider whether the issues raised by Connecticut and the other plaintiffs are “political questions” not resolvable by the courts. Instead, it said, the court should dismiss based on lack of prudential standing and the fact that EPA is acting to regulate greenhouse gas emissions under the Clean Air Act.
EPA action displaced any claim of public nuisance that may be available under federal common law, the government said.
By Steven D. Cook
The government's TVA brief is available at http://op.bna.com/env.nsf/r?Open=thyd-8dnrg9.
The AEP brief is available at http://op.bna.com/env.nsf/r?Open=thyd-8dnrec.
No comments:
Post a Comment