In Landmark Warming Case, Govt's Argument Gets Scrutiny for Flaws, Self-Interest

When the Obama administration last week asked the Supreme Court to vacate a lower bench ruling that could have forced utility companies to cut their greenhouse gas emissions, environmentalists’ outrage was swift and ubiquitous.

Matt Pawa, the plaintiff’s attorney behind the lawsuit, was widely quoted accusing the White House of a dastardly back stab, with numerous bloggers and environmental correspondents speculating on the rationale for the betrayal.

As the sting of perceived betrayal faded, Pawa spoke with SolveClimate News to explain why the lower court got it right and why the White House is on the wrong side of the law.

No Warning

With no warning and contrary to expectation, the Department of Justice had weighed in on the side of polluters in the case known as AEP v. Connecticut. It is a closely watched lawsuit in which a group of states, New York City, and several conservation organizations are arguing that large utility companies are creating a “public nuisance’” through their greenhouse-gas emissions.

For almost 150 years, landowners and governments have brought suits under the federal common law of public nuisance to protect shared resources like lakes and rivers. Pawa had the insight that this well-established body of law could be applied to global warming pollution, and has spent years working to make the public nuisance charge stick to greenhouse gases released into the shared resource of the atmosphere.

If he succeeds, the utilities named in the suit would be forced to cut their emissions, and most significantly, it would set a precedent that would open the door to similar cases throughout the country.

“I think, like any litigant who has prevailed – and we prevailed in the 2nd Circuit –we don’t want to go up to the Supreme Court and put our victory at risk,” Pawa told SolveClimate News this week in an exclusive interview. “We think the 2nd Circuit got it right.”

In the government’s petition, Acting Solicitor General Neal Kumar Katyal argued that due to the EPA’s on-going efforts to regulate greenhouse gas emissions, the courts should use discretion in deciding this issue which has such wide public significance. Congress and the EPA, in other words, are the best arbiters of environmental regulation, not the courts, he argued. Regulation rooted in science-based assessment is preferable to a patchwork of legal decisions around the country.

Only trouble is, the EPA is not doing what the Acting Solicitor General says, according to Pawa.

“There are no proposed EPA regulations for the existing power plants that have been around for decades and have been spewing millions of tons of CO2 and are the subject of our lawsuit,” said Pawa.

The EPA is proposing to regulate greenhouse gas emissions at newly constructed stationary sources such as power plants and cement factories, and tailpipe emissions from certain vehicles. Old power plants would operate without interference and would come under  regulatory scrutiny only if they applied for permits for major modifications.

Government Position Not Surprising

In hindsight, it should have come as no surprise that the Administration filed its brief on the side of utilities. Commentators have since pointed out that the Solicitor General had no choice: he was defending his client, the Tennessee Valley Authority, a federal agency that operates coal-fired power plants, which was named in the lawsuit. And he had to find arguments that would persuade the court on TVA’s behalf.

Further, the DOJ may be acting to protect the interests of the EPA, a federal agency that the department also represents. The EPA is not a defendant in the case, but Katyal’s argument rests on the EPA’s nascent authority to regulate greenhouse gas emissions, a power the administration is working to defend from Congressional attack as well.