Global Warming Comes to the Supreme Court

Justices skeptical of suit filed by States against power industry.

April 19, 2011, 6:20 PM

WASHINGTON, April 19, 2011 -- The Supreme Court took on the issue of global warming today in a case regarding whether a coalition of states can sue five of the country's largest power companies to force them to reduce their carbon dioxide emissions.

The states argue that the companies' plants emit 650 million tons of carbon dioxide each year -- 10 percent of the entire country's emissions. They seek to sue the power plants under the common law of public nuisance and are asking a district court judge to set standards for emissions.

The Supreme Court will decide whether the states have the legal right to bring the suit and whether the issue would be more properly handled by the political branches of government.

Peter D. Keisler, representing four of the power companies, argues that the states can't sue the companies for contributions to global climate change because "billions" of other independent sources have contributed to "more than a century of emissions."

"Every sector of the economy worldwide produces greenhouse gases," Keisler said in court.

He also argued that the state cannot sue under the doctrine of common law (the body of judge-made law that exists in the absence of statutes) because Congress and the Environmental Protection Agency are already working to address the issue.

"This is a case in which the courts are being asked to perform a legislative and regulatory function in a matter in which the necessary balancing of contending policy interest is among the most complex, multifaceted, and consequential of any policy issue now before the country," he said.

But New York State Solicitor General Barbara D. Underwood, who argued on behalf of the states, said there is a firm basis for their effort to take action against the companies.

"This case rests on the longstanding fundamental authority of the states to protect their land, their natural resources and their citizens from air pollution emitted in other states," she said.

The states involved in the case are New York, Connecticut, California, Rhode Island, Iowa and Vermont.

"There is no federal statute or regulation that currently regulates the emission of greenhouse gases by existing unmodified power plants" and the states are entitled to seek a remedy from the federal courts, Underwood said.

Several Justices seemed skeptical of the arguments put forward by Underwood.

"The relief you're seeking, asking a court to set standards for emissions, sounds like the kind of thing that EPA does, Justice Ruth Bader Ginsburg said. "Congress set up the EPA to promulgate standards for emissions ... and the relief you're seeking seems to me to set up a district judge, who does not have the resources, the expertise, as a kind of super EPA."

Justice Samuel Alito raised a similar concern.

"How does a district judge decide what is reasonable and cost-effective?" he asked.

"The whole problem with global warming is that there are costs and benefits on both sides, and you have to determine how much you want to readjust the world economy to address global warming, and I think that's a pretty big burden to impose on a district court judge," Chief Justice John Roberts said.

The Obama administration argued on behalf of the Tennessee Valley Authority, a federally owned corporation, on the side of the power companies. Acting Solicitor General Neal Katyal said the case should be dismissed because the issue is better handled by the political branches.

"There are billions of emitters of greenhouse gasses on the planet and billions of potential victims as well," he said.

The case is being carefully watched by environmentalists.

"The states recognize the unprecedented nature of the lawsuit, but they believe that the federal common law of nuisance is an important arrow in the quiver to pressure all branches of the federal government to come to terms with what is a significant threat to the health and welfare of the state's citizens," said Amanda C. Leiter, a professor at the Catholic University's Columbus School of Law, who wrote a brief supporting the states.

"The case is a way of putting pressure on the EPA to fully and appropriately implement what they are lawfully required to do under the Clean Air Act," said Douglas A. Kysar of Yale Law School, who also wrote a brief in support of the states.

Big business is also following the case with concerns that if a cause of action is recognized, businesses will be subject to more law suits.

The Chamber of Commerce filed a brief in support of the power companies, which include American Electric Power Company and Cinergy Corporation.

"The Chamber believes that common law suits such as this one, which seek to impose caps and reductions on carbon dioxide emissions in a piecemeal fashion on an arbitrary subset of U.S. industry are an especially ill-conceived and constitutionally illegitimate response," the brief said.

The court is expected to decide the case by this summer.

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