Power Companies Axe States’ Nuisance Claims

     (CN) – The Supreme Court on Monday ruled that New York City cannot lead a group of states and land trusts with a nuisance complaint against power companies that release 650 million tons of annual carbon dioxide emissions.




     The six defendants, American Electric Power, American Electric Power Service, Southern Company, Tennessee Valley Authority, Xcel Energy and Cinergy, own and operate fossil-fuel-fired power plants in 20 states. Five of the companies are the “largest emitters of carbon dioxide in the United States and … among the largest in the world,” according to the lawsuit.
     New York City was joined by eight states and three land trusts in its federal public nuisance claims, which the 2nd Circuit revived after a federal judge dismissed it as barred by the political question doctrine.
     The plaintiffs claim that the power companies’ gas emissions contribute to the greenhouse effect, trapping heat in the atmosphere and causing the earth’s temperature to rise. Global warming threatens human health and natural resources, according to the complaint, which seeks an order directing the companies to cap and then decrease emissions.
     On Monday, the unanimous Supreme Court said that the Clean Air Act and Environmental Protection Agency action, as authorized by that law, displace the plaintiffs’ proposed claims. The justices noted that the consolidated action began in 2004, long before the EPA started regulating greenhouse gases.
     The EPA began rulemaking to set limits on greenhouse gas emissions after the Supreme Court’s 2007 decision in Massachusetts v. EPA, which found that the Clean Air Act authorized federal regulation of emissions of carbon dioxide and other greenhouse gases. A final rule on the matter is due from the EPA by May 2012.
     In dismissing the claims on this basis Monday, the majority also noted that it affirmed jurisdiction in the 2nd Circuit by an equally divided court.
     Justice Sonia Sotomayor, who was on the 2nd Circuit panel that originally heard the case, did not participate in the court’s consideration or decision of the case. She had just joined the high court in August 2009 when the 2nd Circuit reinstated the lawsuit the following month.
     American Electric Power and the other defendants argued that the global-warming stands apart from the typical environmental nuisance suit since New Jersey’s emissions could be as much to blame as Chinese emissions for New York flooding.
     Ultimately the justices said that they “need not address the parties’ dispute in this regard.”
     “For it is an academic question whether, in the absence of the Clean Air Act and the EPA actions the Act authorizes, the plaintiffs could state a federal common law claim for curtailment of greenhouse gas emissions because of their contribution to global warming,” according to the lead opinion authored by Justice Ruth Bader Ginsburg. “Any such claim would be displaced by the federal legislation authorizing EPA to regulate carbon-dioxide emissions
     Justice Samuel Alito wrote separately, in a single sentence also signed by Justice Clarence Thomas, to concur in part and agree that the majority correctly interpreted Massachusetts v. EPA for its displacement analysis.
     The plaintiffs were New York City, New York, California, Connecticut, Rhode Island, New Jersey, Iowa, Wisconsin, Vermont, the Open Space Institute, the Open Space Conservancy and the Audubon Society of New Hampshire. The Supreme Court took up the case in December 2010.

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