The plaintiff utilities in American Electric Power v. Connecticut are challenging a ruling last year by the US Second Circuit Court of Appeals that allowed states and environmental groups to move ahead with a public nuisance lawsuit seeking to force the utilities to reduce their greenhouse gas emissions.
Eight states, New York City and three land trusts joined in federal public nuisance claims stemming from two separate lawsuits filed in 2004 that charge the companies with harming the environment through the 650 million tons of carbon dioxide that they emit each year.
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.
According to the lawsuit, five of the companies are the "largest emitters of carbon dioxide in the United States and ... among the largest in the world." The plaintiffs are seeking an order directing the companies to cap and then decrease emissions.
The utilities scored an early victory when a district court dismissed the case, declaring it was barred by the political question doctrine.
Under US law, a ruling that a matter in controversy is a political question is typically based on one of three assumptions: That the US Constitution has committed decision-making on the subject to a branch of the federal government; that there are inadequate standards for the court to apply; or that the court feels that it would not be prudent to interfere.
The case as later revived the 2nd Circuit, which set it on its way to the Supreme Court
Across the US, the High Court’s decision to hear the case is being described as a significant victory for the utilities – months before oral arguments in the case are likely to begin.
Throughout the case’s long history, attorneys for the utilities have argued that nuisance lawsuits targeting power plants are the wrong way to attempt to mitigate the long-term effects of climate change.
They’ve found an ally in the Obama administration, which is representing the TVA and is asking the High Court to vacate the appeals court’s judgment on the grounds that the US Environmental Protection Agency is pursuing its own efforts to cut greenhouse has emissions and that regulation of the issue is better handled by administrative agencies than by the courts.
Now that the case its on its docket, the Supreme Court will consider three questions during their deliberations:
1.) Whether states and private parties may seek emissions caps on utilities for their alleged contribution to global climate change;
2.) Whether a cause of action to cap carbon dioxide emissions can be implied under federal common law; and
3.) Whether claims seeking to cap carbon dioxide emissions based on a court's weighing of the potential risks of climate change against the socioeconomic utility of defendants' conduct would be governed by “judicially discoverable and manageable standards” or could be resolved without “initial policy determination[s] of a kind clearly for nonjudicial discretion.”
The High Court also announced that Justice Sonia Sotomayor has recused herself from the case because she served on the 2nd Circuit panel that originally heard the case. Sotomayor had just joined the High Court in August 2009 when the 2nd Circuit reinstated the lawsuit the following month.
The plaintiff states are 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.
In 2007, the Supreme Court split 5-4 in its first global warming case when it ruled that carbon dioxide and other greenhouse gases are air pollutants under the Clean Air Act. It gave the EPA the authority to regulate those emissions from new cars and trucks.
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