The Supreme Court dove back into the global warming arena on Monday, announcing it would hear a high-profile dispute over whether courts can impose limits on greenhouse gases in the absence of federal regulation (Bloomberg).
In the case, Connecticut versus American Electric Power, eight states and other parties are suing five electric utilities to force unspecified greenhouse gas reductions. The case hinges on “public nuisance” case law and could affect similar cases in other jurisdictions.
A lower court rejected the lawsuit, but the Second Circuit Court of Appeals overturned that decision in September 2009. The Appeals Court ruling, which came after then-panelist Sonia Sotomayor was confirmed to the Supreme Court, did not rule on the merits of the case but rather ruled that it must proceed. Sotomayor recused herself from Monday’s decision to take up the case at the Supreme Court.
David Doniger, a senior attorney with the Natural Resource Defense Council, a New York-based organization that is working with three land conservation trusts that are also party to the suit, says well-established case law allows the courts to step in when Congress and the executive branch fails to regulate. That history was detailed in the Appeals Court ruling, and Doniger says the legal team will take the case forward. “It takes five justices to overturn,” he points out.
“This is one of those cases that could be a nothing burger or really important,” says Jeff Holmstead, a partner with the firm Bracewell and Giuliani in Washington and former assistant administrator of the Environmental Protection Agency under President George W. Bush.
If the court were to rule either that the EPA’s nascent greenhouse gas rules are sufficient to occupy the regulatory void or more generally that the weighty business of crafting climate regulations belongs in Congress and the legislative branch, it could considerably limit the role of the courts in settling climate change disputes, Holmstead says. “There are a range of outcomes, but any one of them is probably likely to reduce the role of the courts.”
A host of other climate related lawsuits are pending in the courts. In one case, the native Inupiat village of Kivalina in Alaska is suing a variety of energy companies over their role in global warming. Whereas the current lawsuit is pushing for climate regulations, Kivalina is asking for damages to the tune of $400 million. And various lawsuits are pending regarding the EPA’s efforts to begin rolling out climate regulations using authority granted by the Supreme Court in 2007.