Last year, Senator James Inhofe, a staunch opponent of EPA’s authority to regulate greenhouse gas emissions, asked the EPA’s Inspector General (IG) to investigate the agency’s endangerment finding related to climate change. The IG’s report was released earlier this week, and its first sentence reads, “EPA met statutory requirements for rulemaking and generally followed requirements and guidance related to ensuring the quality of the supporting technical information.” In his statement on the report, Senator Inhofe translated that to, “This report confirms that the endangerment finding is ….. rushed, biased, and flawed.”
In a unanimous (8-0) decision, the U.S. Supreme Court ruled in AEP v Conn that the state and land trust plaintiffs could not invoke a federal common law public nuisance claim against the five largest electric power companies. The plaintiffs in the case were seeking controls on the carbon dioxide emissions from the utilities’ power plants. Building on their 2007 decision in Mass v EPA, the Court held that Congress in passing the Clean Air Act had authorized federal regulation of greenhouse gas emissions and in doing so had effectively “occupied the field” thereby negating any common law claims. In a decision noteworthy for its brevity and clarity, the Court stated:
We hold that the Clean Air Act and EPA actions it authorizes displace any federal common law right to seek abatement of carbon dioxide emissions from fossil-fuel fired plants. Massachusetts made plain that emissions of carbon dioxide qualify as air pollution subject to regulation under the Act. (page 10)
The Supreme Court announced on December 6 that it would hear an appeal in one of the several common law nuisance cases against greenhouse gas (GHG) emitters that are making their way through the courts. By granting ceritiorari in AEP v. Connecticut, the Supreme Court has signaled its intention to weigh in on the appropriate role of the courts in addressing damages caused by climate change. As explained below, possible future regulatory actions by EPA or, alternatively, action by Congress to restrict EPA’s regulatory authority, could be factors that influence the Court’s decision.
What have the courts figured out that Congress hasn’t yet gotten its arms around?
In a potentially far reaching decision by the United States Court of Appeals for the Second Circuit, the federal courts have once again stepped into the breach and ruled that states and private landowners can sue the five largest electric utilities for climate-related damages they contend were caused by the utilities’ carbon dioxide pollution (Connecticut v. American Electric Power Corp. et al. 2nd Circuit 2009). The appeals court overturned a district court opinion that dismissed the case on the basis that it presented a “political question” that should be decided by another branch of government (Congress or the Executive Branch). The Appeals Court held that until Congressional or regulatory action occurred, common law protections against damage from greenhouse gas pollution are a legitimate basis for a court suit. The case was sent back to the District Court for further proceedings.
Together with the landmark 2007 Supreme Court decision (Mass. v EPA), that has set EPA down the path of regulating greenhouse gas emissions, these court cases underscore a growing recognition by federal courts that the threat of greenhouse gas emissions represent a genuine threat and warrant legal review.
From a practical standpoint, this case cranks up the pressure on both Congress and EPA to act. Case-by case litigation would be disruptive, expensive and problematic given the scope of the challenges we face. The Court’s decision recognizes that these common law public nuisance cases may be preempted by Congressional or executive branch action. It should be increasingly clear to all that the best way forward would be for Congress to pass comprehensive climate legislation.