Greenhouse Gas Emissions Litigation

Litigation in us Courts Regarding Greenhouse Gas Emissions in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): In 2011, the United States participated as a party in an appeal before the United States Supreme Court of an action brought against several power companies, including the Tennessee Valley Authority, which is a federal entity. American Electrical Power Co. et al. v. State of Connecticut et al., Case No. 10-174. Plaintiffs, several U.S. states and some private entities, brought the action seeking to impose and enforce a scheme to control the power companies' emissions. The lower court had dismissed the case as involving a non-justiciable, political question. The U.S. Court of Appeals for the Second Circuit reversed, holding that the plaintiffs could maintain their actions under federal common law alleging that the power companies caused a “public nuisance” by contributing to global warming, reasoning, in part, that the federal government had not yet acted to limit emissions. 582 F.3d. 309 (2nd Cir. 2009).

Developments

The Supreme Court decided the case on June 20, 2011. American Electric Power Co. v. Connecticut, 131 S.Ct. 2527 (2011). A majority of the court agreed that actions by the Environmental Protection Agency (“EPA”) authorized by the Clean Air Act (“CAA”) displace any federal common-law right to seek abatement of emissions. 131 S.Ct. at 2539. The court reasoned:

It is altogether fitting that Congress designated an expert agency, here, EPA, as best suited to serve as primary regulator of greenhouse gas emissions. The expert agency is surely better equipped to do the job than individual district judges issuing ad hoc, case-by-case injunctions. Federal judges lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order. See generally Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 865–866, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Judges may not commission scientific studies or convene groups of experts for advice, or issue rules under notice-and-comment procedures inviting input by any interested person, or seek the counsel of regulators in the States where the defendants are located. Rather, judges are confined by a record comprising the evidence the parties present. Moreover, federal district judges, sitting as sole adjudicators, lack authority to render precedential decisions binding other judges, even members of the same court.

Details

Notwithstanding these disabilities, the plaintiffs propose that individual federal judges determine, in the first instance, what amount of carbon-dioxide emissions is “unreasonable,” … and then decide what level of reduction is “practical, feasible and economically viable,” …. These determinations would be made for the defendants named in the two lawsuits launched by the plaintiffs. Similar suits could be mounted, counsel for the States and New York City estimated, against “thousands or hundreds or tens” of other defendants fitting the description “large contributors” to carbon-dioxide emissions.…

The judgments the plaintiffs would commit to federal judges, in suits that could be filed in any federal district, cannot be reconciled with the decision-making scheme Congress enacted. The Second Circuit erred, we hold, in ruling that federal judges may set limits on greenhouse gas emissions in face of a law empowering EPA to set the same limits, subject to judicial review only to ensure against action “arbitrary, capricious, … or otherwise not in accordance with law.” § 7607(d)(9).

More about the Issue

Id. at 2539-40.

The United States opening brief in the case when it was before the U.S Supreme Court, filed in January 2011, presented the argument—which was accepted by a majority of the Supreme Court in its decision—that the regulation of emissions had been displaced by federal action, in particular actions by the EPA authorized by the CAA. Excerpts discussing this displacement argument from the United States opening brief follow. The brief is available at (internet link) justice.gov/osg/briefs/2010/3mer/2mer/2010-0174.mer.aa.pdf. The U.S. reply brief is available at (internet link) justice.gov/osg/briefs/2010/3mer/2mer/2010-0174.mer.rep.pdf.

Litigation in us Courts Regarding Greenhouse Gas Emissions in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): Instead of relying on any CAA standards or cause of action, plaintiffs have elected to sue a handful of defendants from among an almost limitless array of entities that emit greenhouse gases. Moreover, the types of injuries that plaintiffs seek to redress, even if concrete, could potentially be suffered by virtually any landowner, and to an extent, by virtually every person, in the United States (and, indeed, in most of the world).…

…[The Court] should hold that plaintiffs cannot state a claim for public nuisance under federal common law because any such claim has been displaced by the actions that EPA has taken under the CAA to regulate carbon-dioxide emissions.

Exercising its regulatory authority under the CAA, EPA has directly entered the field plaintiffs would have governed by common-law nuisance suits. Since January 2, 2011, greenhouse gases have been subject to regulation under the CAA, and EPA is actively exercising its judgment and statutory discretion to determine when and how emissions from different categories of sources of greenhouse gases will be regulated. As a result, the CAA, as implemented by EPA, speaks directly to the question of how carbon-dioxide emissions should be limited and thus displaces any common-law claims pertaining to that question.

…EPA now regulates greenhouse-gas emissions under the currently existing statutory scheme of the CAA, and it may soon be specifically committed to completing a rulemaking to address greenhouse-gas-emissions standards applicable to defendants' already-existing power plants, even if they are not modified. Thus, it is abundantly clear that the CAA, as it is now being implemented by EPA, “speak[s] directly” (Milwaukee II, 451 U.S. at 315 (quoting Mobil Oil, 436 U.S. at 625)) to the particular issue presented by plaintiffs' federal common-law nuisance claims about climate change: regulation of greenhouse-gas emissions, and in particular emissions from stationary sources (like defendants' power plants).

Resources

See Also

• Environment
• Transnational Scientific Issues
• Land Pollution
• Air Pollution