Reprinted from Forbes
The U.S. Supreme Court’s decision in AEP v. Connecticut was a clear-cut victory for the utilities who were being sued by Connecticut and several other states over their greenhouse gas emissions. The court ruled that the Environmental Protection Agency occupies this particular field of battle and the states couldn’t sue. The decision turns on the tricky area of “federal common law,” however, a rarely-invoked branch of the law that governs things like environmental disputes between states. As my guest commentator below, Stanley N. Alpert of Constantine Cannonexplains, the high court left plenty of ammunition for environmentalists in its ruling. Alpert’s worth listening to: For 13 years he was an assistant U.S. Attorney, specializing in environmental cases for much of that time.
Getting warmer: The Supreme Court rejects global-warming suit while reaffirming need for action.
On June 20 the U.S. Supreme Court decided against the rights of six States, New York City and three private land trusts to sue under federal common law to prevent global warming. American Electric Power Co., et al. v. Connecticut, et al., No. 10-174 (“AEP”). The case is far more notable for the support it gave to advocates of U.S. action to fight climate change than for the very limited victory it gave to a few polluting electric utilities.
The States sued in 2004 in an entirely different legal environment. The Bush administration argued that the Clean Air Act did not permit EPA to issue regulations addressing climate change and that it would be unwise to do so anyway. To accomplish broad reductions in carbon reductions, the plaintiffs needed to turn to common law, which they did in the AEPlawsuit.
In 2007, the quite conservative Supreme Court changed the legal landscape, ruling in Massachusetts v. EPA, 549 U.S. 497 (2007), that EPA had a duty under the Clean Air Act to determine whether GHGs were an endangerment to the environment, and, if so, to regulate them. Subsequently, Obama’s EPA came down conclusively on the side of regulation, determining that climate science was well settled and that mankind’s impacts on a dangerously shifting climate could not be denied. EPA is now proceeding slowly but steadily toward GHG regulation. This already includes regulations requiring the reporting of GHGs, regulations on GHGs from light duty vehicles, and movement toward implementing a scheme for regulating major industrial plants.
Last week’s AEP decision specifically re-affirmed Massachusetts v. EPAand gave EPA the kick in the pants that it may need to overcome political opposition to its legal duty to regulate GHGs under the Clean Air Act. While the Supreme Court refused to express any view on the science, theAEP court noted that EPA has already determined that the consequences of excessive GHG emissions include more heat-related deaths, coastal flooding, more intense and frequent hurricanes, destruction of ecosystems supporting animals and plants, and potential significant disruptions of food production.
The only issue lost to the States’ legal rights in the new decision was the ability to proceed under federal common law to demand GHG reductions of the power plant emitters. The Congress gave EPA the authority to regulate greenhouse gases under the Clean Air Act and that “displaces” any right to pursue a federal common law nuisance claim. States do have a right, generally, to sue under federal common law for pollution disruptions from another State, such as Missouri suing Chicago to prevent untreated sewage discharges into shared waters. The defendants in AEPasked the Supreme Court to overrule that long-accepted principle but the Court stuck with its precedent and stated that the subject of this case is a proper one for federal common law. However, because Congress has legislated in the Clean Air Act in a manner that “speaks directly to the question at issue,” federal common law is displaced by the statute’s grant of authority to EPA.
Not decided at all by the new decision is whether the Clean Air Act preempts State law (as opposed to federal common law), something that is much harder to find. Also left undecided is the appropriate use of state common law tort systems to seek damages for climate-disruption damages. For example, Native Village of Kivalina, et al. v. ExxonMobil Corp., (N. D. Cal.), is a case filed in 2008 for an Inupiat Eskimo tribe against major oil and electric power companies and the nation’s largest coal company. The case seeks monetary damages to relocate the village because global warming melted the sea ice that formerly protected Kivalina from storms. The cost of relocating the village is estimated to be as much as $400 million or more. The AEP decision actually provides some assistance to the lawsuit brought by the Kivalina plaintiffs in that, by tying 4-4, the Court affirmed the Second Circuit New York appeals court that allowed plaintiffs standing for global warming issues and rejected the argument that climate change is a political question that the courts cannot address.
Stanley N. Alpert is the former Chief Environmental Prosecutor for the U.S. Attorney’s Office in New York and is an environmental and sustainability attorney at Constantine Cannon, LLP