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

Plaintiffs' attorney Pawa and others rise to defend use of public nuisance law

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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.

Pawa’s position is that in the absence of EPA regulation of the heat trapping gases that are causing climate change, the courts should remain a venue for seeking both a remedy and damages from the utilities’ harmful actions.

“If the EPA is not regulating CO2 emissions from existing coal-fired power plants, then, should that mean that anyone who tries to bring a nuisance lawsuit due to the harm to them from global warming, should be bounced out of court?”

Seth Kaplan of the Conservation Law Foundation took the argument one step further. He said that even if the EPA was actively regulating greenhouse gas emissions from existing coal-fired plants, there still remains a flaw in the government’s legal position.

“There’s an analogy here to regulating the pharmaceutical industry,” he said. “The FDA is worried about all the drugs heading to market going forward. But what about damages suffered by people from drugs already on the market? “

Kaplan says they do not lose the right to sue pharmaceutical companies, even if the drugs were marketed with regulatory approval.

“If people have been damaged by the emissions from these utilities, then they should be able to sue, which is essentially what the plaintiffs in this case are arguing.”

Some environmental groups have also argued that the DOJ’s petition hues too closely to the Bush administration’s argument that states should not be granted “standing” to sue in court. 

If the Administration prevails, said Pawa, “States would be utterly powerless to take action as sovereigns in regulating greenhouse gas emissions.”

The Supreme Court, which has take up fewer than 1% of petitions filed with it, may decide as early as this fall on whether to hear the case.

“The government’s positions is disappointing but not shocking,” says Kaplan. “What we have is a government lawyer taking the default position that the issue should be left up to the government. But it’s giving the EPA much more credit than is deserved – they have yet to implement any greenhouse gas regulations.”

See Also

The Man Who Makes Greenhouse Gas Polluters Face Their Victims in Court

Lawyers Advising Clients to Prepare for Economy-Wide GHG Regulation

Murkowski’s Bid to Repeal Science and Block EPA Fails in U.S. Senate: 53 to 47