- WEB EXCLUSIVE
- PE COFFEEHAUS
On June 20, 2011, the Supreme Court again issued a decision the issue of whether the Clean Air Act authorized the EPA to regulate GHG emissions such as CO2. In the matter of the American Electric Power Co., Inc., et al. v. Connecticut et al, the high court in the land affirmed that the EPA had the authority and had misread the law when it earlier denied such authority. The justices overwhelmingly agreed on the issue.
An excerpt of the decision reads:
In Massachusetts v. EPA, 549 U. S. 497, this Court held that the Clean Air Act authorizes federal regulation of emissions of carbon dioxide and other greenhouse gases, and that the Environmental Protection Agency (EPA) had misread that Act when it denied a rulemaking petition seeking controls on greenhouse gas emissions from new motor vehicles. In response, EPA commenced a rulemaking under §111 of the Act, 42 U. S. C. §7411, to set limits on greenhouse gas emissions from new, modified, and existing fossil-fuel fired power plants. Pursuant to a settlement finalized in March 2011, EPA has committed to issuing a final rule by May 2012.
The lawsuits considered here began well before EPA initiated efforts to regulate greenhouse gases. Two groups of plaintiffs, respondents here, filed separate complaints in a Federal District Court against the same five major electric power companies, petitioners here. One group of plaintiffs included eight States and New York City; the second joined three nonprofit land trusts. According to the complaint, the defendants are the largest emitters of carbon dioxide in the Nation. By contributing to global warming, the plaintiffs asserted, the defendants' emissions substantially and unreasonably interfered with public rights, in violation of the federal common law of interstate nuisance, or, in the alternative, of State tort law. All plaintiffs ask for a decree setting carbon-dioxide emissions for each defendant at an initial cap, to be further reduced annually.
The District Court dismissed both suits as presenting nonjusticiable political questions, but the Second Circuit reversed. On the threshold questions, the Circuit held that the suits were not barred by the political question doctrine and that the plaintiffs had adequately alleged Article III standing. On the merits, the court held that the plaintiffs had stated a claim under the “federal common law of nuisance,” relying on this Court’s decisions holding that States may maintain suits to abate air and water pollution produced by other states or by out-of-state industry, see, e.g., Illinois v. Milwaukee, 406 U. S. 91, 93 (Milwaukee I). The court further determined that the Clean Air Act did not “displace” federal common law.
A copy of the entire decision is available on the U.S. Supreme Court’s website by clicking on this link.