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States, NYC Struggle to Make Climate Change Case Before Supreme Court States, NYC Struggle to Make Climate Change Case Before Supreme Court

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States, NYC Struggle to Make Climate Change Case Before Supreme Court


Justice Stephen Breyer is viewed as a swing vote in Connecticut v. AEP.(Richard A. Bloom)

The Supreme Court appears likely to throw out a case that could have determined whether states and private entities can challenge major polluters in court.    

“From the Justice’s questions, the consensus seems to be that the petitioners will win, and the question is simply upon what ground the court will dismiss the case,” said Tristan Duncan, an attorney with Shook, Hardy & Bacon, which represents major coal and other energy industry companies.


At its heart, Connecticut v. American Electric Power illustrated the vast and unique problem posed by climate change caused by the carbon emissions from coal, oil, and gas. The international scale of the problem and the challenge to find a solution create legal, political, and regulatory challenges to all branches of government.

Congress has failed to enact legislation to curb carbon pollution, in part because of the ties lawmakers have to the fossil fuel industry. The executive branch has tried to address the problem through Environmental Protection Agency regulations, but those rules have not kicked in, and when they do, environmentalists say they will not be sufficient.  

So six states, New York City, and three conservation groups hoped to take the question to a third branch of government, the federal courts, in a suit against the nation’s five most-polluting power plants. In oral arguments Tuesday morning, New York state Solicitor General Barbara Underwood told the Supreme Court justices that the suit against the power plants is a direct descendent of a classic 1907 “public nuisance” case, Georgia v. Tennessee Copper, in which the Supreme Court determined that Georgia could take to federal court a Tennessee factory whose sulfur dioxide emissions harmed land, trees, and health in the adjacent state.  


But Peter Keisler, the attorney for the power plant operators, who are asking the Supreme Court to overturn a lower court ruling, said this case is like no other to reach the Supreme Court because of the sweeping nature of climate change. Keisler argued that the issue of climate change doesn't fit a legal precedent -- nor does the solution fit into a courtroom.   

“This task is different because of the global nature of the phenomenon," Keisler said. "Every sector of the economy worldwide produces greenhouse gases, and there is no geographic nexus, as there was in Tennessee Copper and every one of the other nuisance cases, between the source of the emission and the victim that claims the harm. And that changes what the Court has to do.”

In their questioning, justices appeared skeptical that the problem of climate change fits the “public nuisance” definition, and appeared to agree that the problem is so complex that it may indeed be out of the realm of the courts. 

Lawyers on the side of the polluting industries said they were particularly encouraged by a line of questioning pursued by Justice Stephen Breyer, who is viewed as a likely swing vote.


Breyer suggested to Underwood that if climate change cases are allowed in federal court, judges could be on a slippery slope in trying to form policy -- for instance, by imposing a carbon tax, a controversial policy method that has been recommended by economists but rejected in Congress.

“I would like the court to impose a tax of $20 a ton on carbon, right?" Breyer said. "And we bring all the polluters in, and the same injury that you have -- everything's the same, you have 14 experts who say this is how to get it done, it's cost-effective... it will actually bring about a world without global warming, and so let's do it.”

Underwood protested that ordering a polluter to cut emissions is “less intrusive” than imposing a tax, but Breyer shot back: “To try to get into the details of how an electricity company will in fact run its operation, [rather] than to say all you have to do is make a change in the dollar sign that you charge for your product?”

Even two liberal justices, Ruth Bader Ginsburg and Elena Kagan, indicated through questions that they believe courts may not be the appropriate venue for carbon regulation.

Kagan said problems of interstate pollution don’t involve issues of national and international policy. “This is very different from localized pollution. There is a huge chasm between these kinds of cases,” she said. 

And Ginsburg seemed to imply that the EPA’s plans to move forward with regulations will displace the argument for dealing with the problem in the courts.

“The kind of relief you’re seeking sounds like the kind of thing the EPA does,” Ginsburg told Underwood. “The agency is indeed setting standards, and there is a potential for conflict of standards.” Underwood argued that for now, although the EPA has set out a timeline for creating carbon regulations, it has not begun to implement them, and that they could be blocked.

But, Ginsburg responded, “the way agencies go about things is incrementally.”  

One cornerstone of the case that even the conservative justices did not question is the science of global warming, and the idea that it is caused by the carbon emissions from coal, oil, and gas that power the world economy.

“The whole problem here is: How do you adjust the global economy to solve the problem of global warming?” said Chief Justice John Roberts. “That seems like a pretty big burden to put on a district court judge.

“It is true that everyone in the world is harmed by global warming, so any individual in the world could bring a complaint,” he added.

This article appears in the April 20, 2011 edition of NJ Daily.

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