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Greenhouse Chill

Has the Supreme Court frozen climate change litigation?

Fortnightly Magazine - November 2011

Court cited Georgia v. Tennessee Copper Co. ,8 a century-old case in which the Court upheld the State of Georgia’s standing for an injury to it in the capacity of “quasi-sovereign” in seeking to protect its citizens from air pollution originating from its borders. 9 Analogously in Massachusetts, the Court held the Commonwealth should also have standing for its “well-founded desire to preserve its sovereign territory.” 10

On the merits, the Court in a 5-to-4 slight majority agreed with the petitioners that CO is an air pollutant within the “sweeping definition” of the term under section 302(g) of the CAA, 11 and ruled the EPA’s reading of the statutory provision with regard to the definition of air pollutant is unreasonable and the EPA can’t deny its authority to regulate CO2 emissions under section 202(a)(1) of the CAA. 12

Thus, in Massachusetts the Supreme Court held the CAA authorizes federal regulation of emissions of carbon dioxide and other greenhouse gases, and the EPA had misread the act when it denied a rulemaking petition seeking controls on GHG emissions from new motor vehicles. In response, the EPA commenced a rulemaking under section 111 of the CAA, 13 to set limits on GHG emissions from new, modified, and existing fossil-fuel fired power plants. The EPA has committed to issuing a final rule by May 2012 but it remains to be seen whether or not it will stick with that timetable; on Sept. 15, 2011, the agency said it would miss its September deadline for issuing proposed rules.

AEP v. Connecticut

The U.S. Supreme Court on June 20 decided the second landmark case in the climate change context, AEP, which is also the first climate change-related tort case decided by the Court. The Supreme Court through Justice Ginsburg unanimously (8-0) 14 held the federal common law nuisance action seeking injunctive relief in the form of emissions caps on stationary source GHG emissions is displaced by the CAA and the EPA’s regulatory activity that the act authorizes. An equally divided court (4-4) affirmed the holding of the U.S. Court of Appeals for the Second Circuit that plaintiffs had standing to bring the case. The court didn’t reach the Tennessee Valley Authority’s prudential standing arguments, or base its decision on the political question doctrine defense advocated by petitioners. Nor did the Court reach the plaintiffs’ state common law claims.

In 2004, Connecticut and a coalition of seven other states (New York, California, Iowa, New Jersey, Rhode Island, Vermont, and Wisconsin), the City of New York, and three land trusts sued American Electric Power, American Electric Power Service, Southern Company, Tennessee Valley Authority, Xcel Energy, and Cinergy, seeking an order to require the defendants to abate the public nuisance of global warming. 15 The plaintiffs alleged the defendants’ coal-operated power plants create a public nuisance under federal and state common laws. The plaintiffs claimed the defendants were “substantial contributors to elevated levels of carbon dioxide and global warming,” since their annual emissions constitute “approximately one quarter of the U.S. electric power sector’s carbon dioxide emissions and