WASHINGTON—Ask environmental advocates for their reaction to the Supreme Court decision to hear arguments in American Electric Power v. Connecticut case and you won't hear much applause.
Instead, you'll witness plenty of hand-wringing powerful enough to set flesh afire.
So, what's all this fretting about?
On the one hand, conservationists are overjoyed by the timetable the Environmental Protection Agency released for grappling with greenhouse gas emissions from two of the country's most prolific polluters—electric utilities and oil refineries.
But on the other hand, they fear it could gum up the high-profile case the Supreme Court has agreed to hear. The high court's ruling could determine whether the courts remain crucial players in the effort to curb heat-trapping gases, or end up sitting it out.
Later this year the justices will be drilling down on three complex questions at the crux of the case. They will decide if states and private parties can use public nuisance law to sue electric utilities to cap their carbon dioxide emissions. It's the first such suit related to climate change to reach the high court, and that development is being chalked up as a victory for the utilities.
"I think the Supreme Court got a little ahead of itself," Vermont Law School associate professor Martha Judy told SolveClimate News in an interview. "Given the political orientation of the court, I'm not surprised they accepted it. I had no doubt it would end up before them sooner or later. I just think it would have been better later."
What's at Stake?
Connecticut, seven other states and New York City have joined with several land trusts as plaintiffs in the case. As Natural Resources Defense Council attorney David Doniger explained, they will be pressing the justices to keep the courthouse doors open on climate change cases until and unless the executive branch actually sets Clean Air Act standards that slice emissions.
Their opponents, five coal-burning power companies that operate facilities in 21 states, will be asking the Supreme Court to shut the courthouse doors on federal nuisance suits designed to rein in carbon pollution.
They maintain that any entity hurt by their carbon pollution should have to wait for the EPA to act. After all, if the utilities lose in court, they might have to close down their plants or compensate those harmed by the effects of global warming.
The NRDC is helping to represent the Audubon Society of New Hampshire and the Open Space Institute and the Open Space Conservancy, both of New York. All three private land trusts are at risk of losing coastal property due to a rise in sea levels.
"With some in Congress attacking EPA and the Clean Air Act," Doniger said, "the federal courts are more important than ever to protect the health and welfare of millions of Americans put in danger of these power companies' enormous carbon pollution."
What galls the plaintiffs and many green groups is that lawyers with the Obama administration sided with the utilities' plea that nuisance claims aren't a good fit for the courts. The attorneys argued that such a suit would interfere with EPA's efforts to tackle greenhouse gas emissions.
EPA Falling Short
Judy, the South Royalton, Vt., law professor, begs to differ with that assessment of EPA's progress. The executive branch is trying to hold the courts at bay by overstepping and overstating EPA's accomplishments thus far and displacing or undercutting the plaintiffs' ability to sue, she said.
For one, the tailoring rule that took effect Jan. 2 encompasses only new or modified power plants and other major emitters. And two, the Supreme Court agreed to hear the case in early December, several weeks before the EPA announced plans to regulate emissions from utilities by May 2012 and oil refineries by November 2012.
Plus, Judy added, Congress and other entities are intent on challenging every move the EPA makes in deploying the Clean Air Act to control global warming.
"EPA is doing its part now but it's only at a proposed level," she said. "It could take EPA years to act and their actions could be waylaid or blocked. Many regulations are proposed but few are actually executed."
And she's not alone in her thinking. Environmental attorney Jonathan Peress said in an interview that it was risky for the Obama administration to side with the utilities in this case.
"It's way premature to make a determination that the Clean Air Act has displaced a common law public nuisance claim," said Peress, the director of the clean energy and climate change program at the New Hampshire-based Conservation Law Institute. "That's not a sound legal theory."
While nuisance claims have a lengthy history in common law, Judy pointed out, the public nuisance strategy in this case is relatively new. Traditionally, nuisance claims are used to settle disputes between neighbors over offensive smells, noise and other annoyances.
Wending Its Way to Washington
When the lawsuit was initiated in 2004, the federal government had not yet been ordered to regulate greenhouse gas emissions as pollution. It wasn't until 2007, with the Supreme Court decision in Massachusetts v. EPA, that it became a possibility.
States involved in American Electric Power v. Connecticut endured their first setback in 2005 when a federal judge in New York ruled they couldn't proceed with public nuisance lawsuits because they raised political issues that the court couldn't resolve. Other states on board include California, Iowa, New Jersey, New York, Rhode Island, Wisconsin and Vermont.
However, the 2nd U.S. Circuit Court of Appeals gave the plaintiffs a path forward in 2009 by ruling that the utilities could be sued in federal court to slash the 650 million tons of carbon dioxide they emit annually. That prompted American Electric Power, Duke Energy, Southern Co., Xcel Energy and the federally operated Tennessee Valley Authority to fight back.
Justice Sonia Sotomayor will likely recuse herself because she previously served on the appeals court that heard the case. If the eight remaining judges reach a 4-4 decision, the appeals court decision would remain in effect.
A Better Route
Utilities are hoping the justices essentially kill the case by ruling that states and private parties can't use the public nuisance law to force power plants to reduce their emissions. That would erode the ability of states and others to use emissions as grounds for a lawsuit, Peress said.
Allowing judges to order emission caps could transform the way this nation "produces and obtains energy, limit its supply, dramatically raise its cost and jeopardize reliable service to the public," the utilities stated in a court brief.
On the other end of the spectrum, the states and environmental advocates want the high court to see the merit of their argument, thus likely allowing a lower court to sort out the details.
"Judicial review may be the best option to address global warming in light of legislative and executive inaction to curb human-induced climate change," said Judy, the associate law professor.
She emphasized that this case should have been handled by lower courts all along, instead of reaching the Supreme Court prematurely. A Supreme Court decision would be more appropriate, she added, when Clean Air Act rules to regulate carbon emissions are fleshed out and have teeth.
A trial court judge or jury agreeing with the public nuisance claim, she said, could have fashioned a solution that compensates the states by forcing the offending utilities to make payments and/or pare down their carbon footprint.
Oral arguments are scheduled for spring, with a decision expected by July.
If the Supreme Court justices reverse American Electric Power v. Connecticut, Judy is fearful the judiciary branch will be watching the climate change drama unfold from the sidelines.
"EPA shouldn't be allowed to say, 'This is our job and only our job,'" she said. "We have a system of checks and balances. We can't just sit around twiddling our thumbs. The regulation of greenhouse gases needs to have as many of our institutions addressing it as possible."
Photo: Matthew G. Bisanz