Supreme Court takes global warming case that targets power companies

A global warming lawsuit aiming to force power companies to curtail carbon emissions will come before the Supreme Court next year. The suit asks for a judicial order to that effect, but would such a move usurp role of other government branches?

The US Supreme Court on Monday agreed to examine a major environmental lawsuit that seeks to force six electric power companies to cap and reduce their carbon-dioxide emissions to fight global warming.

The lawsuit – filed in 2004 by eight states, the City of New York, and three land trusts – targets what it claims are the largest emitters of carbon dioxide in the United States and among the largest in the world.

It seeks a judicial order declaring that the fossil-fueled power plants are a “public nuisance.” It also seeks a judicial order capping the plants’ greenhouse gas emissions and requiring the plants to adopt a schedule of reduced emissions in future years.

What makes the lawsuit unusual is that it is an attempt to fill a vacuum in US environmental policy on how best to regulate greenhouse gas emissions and fight global warming. The issue is a source of substantial controversy and a political hot potato, particularly at a time of high unemployment and a sluggish economy.

A federal judge dismissed the lawsuit on grounds that it raised sensitive policy questions best left to the political branches. But a federal appeals court in New York reversed that decision, allowing the lawsuit to move forward.

The power companies are now asking the US Supreme Court to reverse the appeals court and dismiss the lawsuit.

“The ramifications of this [appeals court] holding, if it is allowed to stand, are staggering,” wrote Peter Keisler in a brief on behalf of the six power companies. “This litigation seeks to transfer to the judiciary standardless authority for some of the most important and sensitive economic, energy, and social policy issues presently before the country.”

The lawyer added: “Virtually every entity and industry in the world is responsible for some emissions of carbon dioxide and is thus a potential defendant in climate change nuisance actions under the theory of this case.”

In a brief filed on behalf of the Tennessee Valley Authority, the Obama administration said that Congress had empowered the Environmental Protection Agency to regulate emissions from power plants through the Clean Air Act. The brief said the EPA has taken “several actions” under the CAA to address greenhouse gas emissions.

The EPA has adopted greenhouse gas emission standards for certain motor vehicles and is currently “evaluating whether and how to add greenhouse gases to the new source performance standards that apply to power plants,” the brief said.

The states that filed the lawsuit are New York, Connecticut, California, Iowa, New Jersey, Rhode Island, Vermont, and Wisconsin. A similar suit was filed by the Open Space Institute, the Open Space Conservancy, and the Audubon Society of New Hampshire. Both suits have been consolidated.

The complaint warns that continued unrestrained emission of greenhouse gases may cause “an abrupt and catastrophic change in the earth’s climate.” Among listed impacts are a reduction of California’s mountain snowpack, the state’s largest source of fresh water.

The suit also complains that within 100 years, global warming will cause billion-dollar adverse impacts to the environment, residents, and property. These include prolonged heat waves, increased smog, beach erosion, inundation of coastal land with sea level rise, more droughts and floods, increased wildfires, and reduced biodiversity.

Twelve states filed a friend-of-the-court brief urging the high court to take up the case and dismiss the lawsuit. They include Indiana, Arkansas, Hawaii, Kansas, Kentucky, Nebraska, North Dakota, Ohio, Pennsylvania, South Carolina, Utah, and Wyoming.

“The theory of liability being advanced here has no limiting principle,” Indiana Solicitor General Thomas Fisher wrote in the 12-state brief. “It would permit federal courts to impose CO2 emission limits on any entity in the country, and one might reasonably expect that the major economic actors of each state, not to mention state government entities themselves, would be on a list of potential defendants.”

Mr. Fisher said that given widespread disagreement over the issue of greenhouse gas emissions, someone must make a policy determination. “That someone,” he said, “should not be the federal judiciary.”

The companies named in the suit include American Electric Power Co., American Electric Power Service Corp., Southern Company, the Tennessee Valley Authority, Xcel Energy, and Cinergy Corp.

The suit says the companies emit 650 tons per year of carbon dioxide, or roughly one-quarter of the US electric power sector’s carbon-dioxide emissions. The companies operate in 21 states and provide electricity to millions of customers.

The appeals court panel that reinstated the lawsuit initially included Judge Sonia Sotomayor – who later was elevated to the Supreme Court. As a result, she has recused herself from the case.

The case is American Electric Power Company v. State of Connecticut. It will be heard in the spring, with a decision expected by late June.