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:

1. 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
2. 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)

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 (5^th 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.

[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.

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.

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 (NO_x), 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 CO_2.[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.

[2] 75 Fed. R. 31514, 31535 (June 3, 2010).

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.

• Full text of the Endangerment and Cause or Contribute Findings (pdf)
• Full text of the Tailoring Rule (pdf)
• Full text of the Light Duty Motor Vehicle Rule (pdf)
• White House Press Release on the Senate Murkowski Resolution Vote

Maggie Macdonald is a  summer associate at Sive, Paget & Riesel, PC.

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.

• 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. 

• Read more about emerging climate change issues.

At its heart, the bill would establish a mandatory global warming pollution reduction program designed to reduce total annual greenhouse gas emissions for selected sectors of the economy (a more limited selection of sectors than covered by the House bill) to 17 percent below 2005 levels by 2020 and 83 percent below 2005 levels by 2050.  The reductions will be achieved by the distribution and/or auction of a fixed number of emissions allowances, which allowances can then be traded in a heavily regulated market and for which a hard price collar would be set.  The proposed cap-and-trade program is designed to prevent speculation by limiting potential buyers of allowances to those entities with compliance obligations and those registered to participate in the carbon market.  The House bill did not limit market participants.

In an effort to protect consumers in the event of energy price increases, the Kerry-Lieberman bill proposes to refund 75 percent of allowance sale proceeds, while the House bill provides for a refund of only 45 percent of such proceeds.  The bill also seeks to protect domestic industry (and jobs) from “carbon leakage” by establishing a border adjustment mechanism by which imports from countries without emissions reductions will be subject to a fee.

In apparent recognition of the need to garner industry support, the bill includes provisions that would limit the ability of the EPA to employ existing provisions of the Clean Air Act to impose additional regulatory obligations on greenhouse gas emissions from facilities that are subject to the bill’s emissions reduction program.  While states retain the authority to set vehicle standards and take certain other actions relating to the regulation of greenhouse gases, the proposed legislation would preempt state authority to impose cap-and-trade programs once the federal program was in place.  Although portions of the bill were reworked following the disaster in the Gulf of Mexico, the bill incentivizes offshore drilling in previously protected areas by offering revenue sharing to coastal states (subject to state vetoes under certain circumstances).  It also contains substantial incentives for nuclear power development and carbon capture and sequestration.

It remains to be seen whether the Obama administration will lend substantial support to this effort, and even if it does, it will be difficult to secure the required 60 votes for passage.  The need for certainty by industry and EPA’s spate of regulations addressing greenhouse gas emissions from mobile and stationary sources may create a coalition of the willing for action by Congress.

To read more about the draft bill, see the following links:

• Full text of the draft bill (pdf)
• Short summary of the draft bill (pdf)
• Section by section summary of the draft bill (pdf)

In addition, EPA proposes to add three reporting requirements applicable to all facilities, requiring provision of the following information: (1) the name, address, and ownership status of the reporter’s U.S. parent company, (2) the reporter’s primary and all other applicable North American Industry Classification System (“NAICS”) code(s), and (3) an indication of whether or not any of the reported emissions are from a cogeneration unit.

EPA plans to finalize all four of these proposed rules this year.  Comments are due by June 11, 2010.  More information can be found here.

• Read all posts on climate law

Supporters, including the Sierra Club and Greenpeace, argue that the project would provide a clean, renewable source of energy and hundreds of construction jobs, and would decrease the region’s reliance on fossil fuels and benefit the environment by lowering emissions of greenhouse gases.

Opponents have focused on negative impacts to natural beauty and the surrounding area’s historic landmarks.  In addition, they claim that infrastructure improvements will result in sharply increased costs over those for conventional power.  The Wampanoag tribe, which requires unobstructed views of the sunrise for sacred ceremonies, has announced that it will challenge the project for violations of tribal rights.

In response to concerns expressed during the consultations with tribes and the Advisory Council on Historic Preservation, the Department of the Interior (“DOI”) required the developer to change the design and configuration of the wind farm to mitigate potential visual and historic impacts.

This is not the final hurdle that this project must clear, however.  The Federal Aviation Administration has yet to make a final determination on the project and the developer has not yet entered into a contract with the local utility, National Grid, to carry the power.  Nine state and local permits are being appealed in the courts, and nearly a dozen parties have filed notices of intention to sue for violations of various environmental laws and regulations.

Despite the remaining steps before construction may begin, DOI’s approval of the Cape Wind project is seen as a positive sign for several other proposed offshore wind projects along the eastern seaboard.  Each project will face its own complex federal, state and local permitting issues, but DOI’s action on Cape Wind will likely provide valuable political momentum to other proposed offshore wind projects.

Read the full DOI press release here.