August 26, 2010
In a significant and surprising development, on August 24 the Solicitor General of the United States filed a brief in the Supreme Court asserting that a groundbreaking climate change decision by the Second Circuit Court of Appeals should be vacated and remanded for further consideration.
The brief, submitted on behalf of the Tennessee Valley Authority (“TVA”), a defendant in the Second Circuit case, Connecticut v. American Electric Power Co., 582 F.3d 309 (2d Cir. 2009), forcefully asserts that:
- as a matter of judicial self-restraint (under non-constitutional prudential standing doctrine), federal courts should decline to hear cases alleging that global warming creates a common law nuisance because “courts – when no statute is in place to provide guidance – are simply not well-suited to balance the various interests of, and the burdens to be borne by, the many entities, groups and sectors of the economy that, although not parties to the litigation, would be affected by a grievance that spans the globe,” and
- the predicate for the Second Circuit’s decision, that common law nuisance claims had not been displaced by EPA action, is “no longer true” because “EPA has now taken final action that, as of January 2, 2011, makes carbon dioxide subject to regulation under the [Clean Air] Act.”
In his brief, the Solicitor General requests that the Supreme Court grant the writ of certiorari, vacate the judgment of the Second Circuit, and remand the case for further proceedings to consider these issues.
The Solicitor General’s brief parts ways to a certain extent from arguments advanced by power companies in their petition for Supreme Court review, but nonetheless forcefully advances a number of arguments against using common law nuisance actions to reduce greenhouse gas emissions through case-by-case adjudication. The brief will likely take many in the climate law community by surprise, because the federal government has been perceived recently as an advocate for stronger climate regulation, and the threat of nuisance litigation may help spur legislative and/or regulatory action. One advocate reacted to the filing by stating that he felt like he’d been stabbed in the back. Some of the more powerful statements in the Solicitor General’s brief include:
- The medium that transmits injury to potential plaintiffs is literally the Earth’s atmosphere – making it impossible to consider the sort of focused and more geographically limited effects characteristic of traditional nuisance suits targeted at particular nearby sources of water or air pollution.
- Courts should not “sit as arbiters of scientific and technology-related disputes” and as “de facto regulators of power plants and other sources of pollution.”
- Public nuisance cases involving climate change are ill-suited to judicial resolution because they “present a unique confluence of a vast category of potential plaintiffs who may sue any among a vast category of potential defendants by alleging that their actions affected the entire Earth.”
The state, municipal and land trust plaintiffs can be expected to mount significant arguments against Supreme Court review and in favor of the Second Circuit’s decision. We will provide an update after those filings have been lodged.
- A copy of the brief may be accessed here (pdf)
August 24, 2010
On August 2nd, five electric power companies[1] filed a Petition for Certiorari with the Supreme Court, seeking review of a Second Circuit decision holding that power companies can be sued for creating a public nuisance by emitting greenhouse gases. The litigation began in 2004, when eight states, along with the City of New York and several private land trusts, brought an action against the nation’s five largest coal-burning power companies,[2] alleging that their greenhouse gas emissions create a nuisance by contributing to global warming. The Southern District of New York dismissed the case on the grounds that it posed non-justiciable political questions. Connecticut v. American Electric Power Co., 406 F.Supp.2d 265 (S.D.N.Y. 2005). The plaintiffs appealed, and on September 21, 2009, the Second Circuit issued an opinion reversing the case’s dismissal. Connecticut v. American Electric Power Co., 582 F.3d 309 (2d Cir. 2009). A more detailed analysis of the Second Circuit’s opinion can be found in an earlier SPR blog post.
Key issues raised in the petition to the U.S. Supreme Court by the power companies include:
- The national importance of resolving whether greenhouse gases can or should be regulated by the courts on a case-by-case basis;
- Whether court decisions are precluded by new federal regulations governing greenhouse gas emissions that were not in place at the time of the Second Circuit’s decision, such as EPA/NHTSA’s joint emissions standards for vehicles and EPA’s greenhouse gas Tailoring Rule for stationary sources;
- The prospect of a proliferation of cases seeking damages for alleged injuries caused by multiple defendants’ contribution to climate change;
- Whether plaintiffs have legal standing to sue;
- Whether the Second Circuit was justified in deviating from other recent federal court decisions in which common law claims against greenhouse gas emitters have been dismissed, such as California v. General Motors Corp., 2007 WL 2726871 (N.D. Cal. 2007); Native Village of Kivalina v. ExxonMobil Corp., 663 F.Supp.2d 863 (N.D. Cal. 2009) (appeal pending); Comer v. Murphy Oil USA, 2007 WL 6942285 (S.D. Miss. 2007), appeal dismissed for technical reasons, 585 F.3d 855 (5th Cir. 2009);
- Whether a court-imposed emissions cap requires policy decisions that are not within the proper province of the courts; and
- Whether the Second Circuit’s decision represents an unwarranted extension of the Supreme Court’s decision in Massachusetts v. EPA, 549 U.S. 497 (2007).
We will provide an update when the papers opposing Supreme Court review have been filed.
For more information on emerging climate change law and policy, contact Jeff Gracer.
[1] The petitioners are American Electric Power Company, Inc., its subsidiary American Electric Power Service Corporation, Duke Energy, Southern Company, and Xcel Energy.
[2] The named plaintiffs were American Electric Power Company, Inc., its subsidiary American Electric Power Service Corporation, Cinergy Corporation (since merged into Duke Energy), Southern Company, Xcel Energy, and the Tennessee Valley Authority.
August 10, 2010
On July 26th, the Fourth Circuit Court of Appeals dismissed a lawsuit brought by the State of North Carolina against the Tennessee Valley Authority (“TVA”) alleging that interstate air emissions from TVA power plants create a public nuisance. The dismissal set aside an injunction that would have required the installation of more than a billion dollars worth of emissions control technologies at four TVA plants in Alabama and Tennessee. North Carolina v. TVA, — F.3d —, 2010 WL 2891572 (4th Cir. Jul. 26, 2010).
The Fourth Circuit rejected the use of “vague public nuisance standards” to address activities that are expressly permitted and extensively regulated under the Clean Air Act. It stressed the potential for chaos among states resulting from a patchwork of nuisance injunctions and for disruption of expectations and reliance interests of those actors that have complied with the Act’s requirements. However, the Court refrained from completely preempting the field of air emissions regulation, noting that the Clean Air Act’s savings clause may allow for certain common law nuisance claims.
Citing principles of federalism, the Fourth Circuit also criticized the district court’s decision for its application of North Carolina law extraterritorially to TVA plants located in Alabama and Tennessee by crafting an injunction that relied on the emissions standards of a North Carolina state law. The three-judge panel highlighted the remedies that remain available to North Carolina, including the Clean Air Act’s Section 126 petition process, the comment period for State Implementation Plans, judicial review of EPA actions, as well as citizen suit remedies under the Clean Air Act.
While the precedential impact of the opinion is yet unclear, the participation of the attorneys general of sixteen other states, including New York’s Andrew Cuomo, in an amicus brief supporting the authority of states to bring public nuisance actions to abate interstate pollution signals the importance of the issue. Although the Fourth Circuit’s decision did not involve claims relating to greenhouse gas emissions, a recent petition for certiorari challenging the Second Circuit’s common law nuisance findings with respect to greenhouse gas emissions cited North Carolina v. TVA as evidence that comprehensive regulation under the Clean Air Act can displace federal common law nuisance claims. Connecticut v. American Electric Power Co., 582 F.3d 309 (2d Cir. 2009), petition for cert. filed, No. 10- (U.S. Aug. 2, 2010). This issue will continue to percolate in the courts unless and until it is resolved by the Supreme Court.
July 27, 2010
Last week, air pollution litigation was a prominent theme at the office of the New York State Attorney General, which announced major developments in two separate matters.
On July 20, 2010, Attorney General Andrew Cuomo announced that his office, as well as the Pennsylvania Department of Environmental Protection (“PADEP”), had issued a notice of intent to sue the Homer City Station power plant in western Pennsylvania over Clean Air Act (“CAA”) violations that affect air quality in New York. The Homer City Station plant is a 1,884 megawatt electric power plant located 50 miles west of Pittsburgh. According to a Cuomo press release, the plant emits “over 100,000 tons of sulfur dioxide (SO2), nitrogen oxides (NOx), and particulate matter (PM) each year,” and “the plant’s annual emissions of over 100,000 tons of SO2 alone constitut[e] one of the largest upwind sources of this kind of pollution to New York state.” New York and PADEP allege that the plant, in violation of the CAA, failed to upgrade its pollution control technology when the facility underwent modifications in the 1980s and 1990s which increased its emissions. The lawsuit would seek the facility’s full compliance with the Clean Air Act, which would include the adoption of new pollution control technology.
On July 22, 2010, Cuomo announced that New York, joined by 12 other states, had filed a motion to intervene in a consolidated case challenging EPA’s recent greenhouse gas “Tailoring Rule.” The Tailoring Rule makes regulation of carbon dioxide (CO2) emissions practicable by setting the threshold for the applicability of the CAA’s Title V and prevention of significant deterioration (“PSD”) permit requirements at 100,000 tons per year (“tpy”) for new sources and 75,000 tpy for modified sources.
The existing statutory threshold, at 100 tpy for certain listed sources, or 250 tpy for other sources, was designed for pollutants present in much lower ambient concentrations than CO2.[1] EPA had determined that, with its recent classification of CO2 as a regulated pollutant (due to the new EPA/NHTSA automobile emissions standards), the old threshold would give rise to a 140-fold increase in PSD permits[2], a significant burden both for the newly regulated sources as well as for EPA.
Since the publication of the Tailoring Rule in the Federal Register on June 3, 2010, at least five separate challenges to the rule have been brought in the D.C. Circuit, where they have been consolidated. On June 23, the D.C. Circuit set an initial briefing schedule for these cases, with all dispositive motions currently due by September 13, 2010. New York State, which supports the Tailoring Rule, has been joined in the motion to intervene by California, Illinois, Iowa, Maryland, Massachusetts, Maine, New Hampshire, New Mexico, North Carolina, Oregon, Pennsylvania, and Rhode Island.
Congress’s continued inability to pass comprehensive legislation governing greenhouse gas emissions shifts the focus on regulatory efforts by EPA and the states to address conventional pollutants as well as greenhouse gas emissions. The recent actions by New York and other states to enforce the Clean Air Act as it applies to coal fired power plants and to defend EPA’s greenhouse gas regulations represents an important, if fragmented, effort to fill the gap left by continued Congressional inaction.
[1] See CAA §§ 165 (limiting application of PSD to “major emitting facilities”), 169(1) (defining “major emitting facility” with reference to the 100/250 tpy threshold).
[2] 75 Fed. R. 31514, 31535 (June 3, 2010).
June 14, 2010
On Thursday, June 10th the Senate voted 53-47 against a resolution by Lisa Murkowski (R-Alaska) to disapprove EPA regulation of greenhouse gases (“GHGs”) under the Clean Air Act. Senator Murkwoski invoked a rarely utilized legislative procedure under the Congressional Review Act that would have required a simple majority of 51 votes. President Obama had already promised to veto the Murkowski resolution if it had passed.
Despite the fact that Murkowski garnered the support of six Democrats, many argue that the vote on the EPA disapproval resolution is not indicative of the Senate’s general posture toward enacting comprehensive climate change legislation. It is possible that votes for the Murkowski resolution were expressions against rulemaking by EPA under its existing Clean Air Act authority, and not necessarily an indication of how Senators would vote on comprehensive legislation. It has been reported that another vote on a proposal by Senator Rockefeller to delay EPA regulation of stationary sources for two years has been gaining support and may have been part of a compromise that led to the defeat of Murkowski’s resolution.
The EPA regulations, which will go into effect beginning in 2011 unless they are stalled by Congress or the courts, include a light-duty motor vehicle rule combining fuel economy standards with emissions limits to address the GHG emissions EPA found contribute to global warming in an endangerment finding published last year. Murkowski was also seeking to overturn EPA’s Tailoring Rule, published last week in the Federal Register, which phases-in regulation of GHG emissions from stationary sources and shields many small emitters from implementing best available control technologies when GHGs begin to be regulated.
For more information on emerging climate change law and policy, contact Jeff Gracer.
Maggie Macdonald is a summer associate at Sive, Paget & Riesel, PC.
June 3, 2010
Following its decision to grant en banc review of a Mississippi district court’s dismissal of a class action suit claiming that various oil and energy companies contributed to climate change, the Fifth Circuit Court of Appeals dismissed the appeal after it lost a quorum of judges necessary to hear the scheduled en banc appeal. Comer v. Murphy Oil USA, — F.3d —, 2010 WL 2136658 (5th Cir. May 28, 2010). Eight of the court’s sixteen judges recused themselves from hearing the case, presumably because they held stock in the defendant companies, leaving the court one judge shy of the requisite nine for a quorum.
Absent a quorum, five of the remaining eight Fifth Circuit judges concluded that they lacked judicial authority over the case and dismissed the appeal. Because the prior panel decision had been vacated when the court granted rehearing en banc, the dismissal of the appeal effectively reinstated the district court decision, which had dismissed the case. Three judges dissented from the Fifth Circuit’s dismissal, arguing that other alternatives were available for the Court to hear the appeal. Some have questioned whether dismissal of the appeal on narrow technical grounds signaled an unwillingness to reach the merits of what has become a highly troublesome issue for the courts.
The Fifth Circuit’s dismissal of Comer stands at odds with a Second Circuit decision handed down last fall that is currently the subject of a petition for certiorari to the Supreme Court. Connecticut v. American Electric Power Co., 582 F.3d 309 (2d Cir. 2009) (“CT v. AEP”). In CT v. AEP, the Second Circuit reversed the lower court’s dismissal of a lawsuit alleging that climate change creates a public nuisance and rejected the argument that such suit presents a non-justiciable political question. The Fifth Circuit’s dismissal order noted that the Comer plaintiffs also could petition for review by the Supreme Court. Given what could be seen as an effective split in the circuits, Supreme Court review now seems more likely.
June 1, 2010
On May 27, 2010, Mayor Bloomberg announced the release of a landmark report analyzing climate change adaptation needs and strategies in New York City. The report was compiled by the New York City Panel on Climate Change, an expert panel convened by the Mayor to provide climate change-related advice to the New York City Climate Change Adaptation Task Force. Described in a City press release as “one of the most comprehensive studies on climate change adaptation undertaken by a municipality,” the report addresses the following issues:
- Predicted changes to New York City’s climate;
- Effects of such changes on the City’s energy, transportation, water, waste, and communications infrastructure;
- Models for mitigating harm to City infrastructure;
- Impact of federal, state, and local environmental laws on current and potential climate change adaptation efforts in New York City;
- Role of the insurance industry in developing climate change adaptation strategies based on risk assessment; and
- Strategies for monitoring climate change.
Pamela Esterman, an SPR principal, was a contributing author of the report; she co-authored Section 5.3, which discusses how the National Environmental Policy Act (NEPA), the New York State Environmental Quality Review Act (SEQRA), and the New York City Environmental Quality Review (CEQR) may provide useful legal frameworks for the identification of climate change adaptation needs.
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