SUPREME COURT TO HEAR GHG CASE

Justices to Rule on States’ Emissions Case
Leslie Kaufman, December 6, 2010 (NY Times)

"The Supreme Court…[will] hear arguments on whether plaintiffs can turn to the courts to seek reductions in emissions by coal-burning utilities on the ground that the emissions are a ‘public nuisance.’

"The court will hear an appeal of a 2009 decision by the United States Court of Appeals for the Second Circuit, in New York, allowing a suit filed against the utilities by eight states, New York City and three land trusts to proceed. A lower court had dismissed the [2004] suit, calling the regulation of emissions a political matter…[The suit] argued that the utilities were creating a public nuisance by burning coal and spewing heat-trapping carbon dioxide into the atmosphere, contributing to the problem of global warming. At the time the lawsuit was considered an alternative to federal legislation or regulation, which had been slow in coming."

This is not a partisan matter. (click to enlarge)

"It is the first public-nuisance suit related to climate change to reach the Supreme Court. Lower courts have generally declined to allow such suits to proceed because it would put judges in the position of deciding how much carbon dioxide was too much…[T]he utilities — American Electric Power, the Southern Company, Xcel Energy, the Cinergy Corporation and the Tennessee Valley Authority — said the emissions issue was a matter for Congress.

"The Obama administration urged the Supreme Court [not] to hear the appeal…saying the nuisance claim would interfere with its current efforts to regulate carbon dioxide through the Environmental Protection Agency. The Supreme Court held in 2007 that greenhouse gases were pollutants under the Clean Air Act and therefore could be regulated by the E.P.A…The states — California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont and Wisconsin — and other plaintiffs [also] urged the Supreme Court to reject the appeal…[and] cited studies by the United Nations and the National Academy of Sciences predicting threats to the environment from greenhouse-gas emissions and global warming. The land trusts said that rising sea levels linked to climate change would inundate their properties, among other problems."

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"Justice Sonia Sotomayor has recused herself because she sat on the Second Circuit panel that heard arguments in the case.

"Tracy Hester, a professor at University of Houston Law Center specializing in environmental issues, said a Supreme Court ruling could potentially determine who has the standing in such lawsuits — and whether they can be brought in the absence of specific legislation or federal regulations on emission limits…"