Can the Courts order Carbon Cuts?
Supreme Court to Decide the Issue
The U.S. Supreme Court will hear a case over whether the judicial branch can essentially impose carbon limits on companies. The utility world is gleeful but should it be?
The crux of the argument that the utilities are making is that these matters should be left to elected officials and regulators. The U.S. Environmental Protection Agency has already been given the authority to monitor the carbon emissions from power plants, which it is now trying to do. Understandably, power companies don't want judges telling them how to operate their plants. But they have been just adamant about having the EPA set new rules and regulations.
"Public nuisance law would be an unwelcome, unpredictable and unwieldy addition to the utility regulatory landscape," says Christine Tezak, an analyst for Baird & Co. "It is better for the industry if the EPA or Congress manages this issue, instead of the courts."
The case dates back to 2004 and is known as American Electric Power v. Connecticut. Here, several states, the city of New York and some interest groups said that coal-burning utilities were contributing to global warming and should therefore be liable under public nuisance laws. A district court threw out the suit, which was then taken to an appeals court. In 2009, that higher court said the matter could go forward.
That's when the utilities in question - AEP, Duke Energy, Southern Co., the Tennessee Valley Authority and Xcel Energy - appealed to the U.S. Supreme Court. The High Court said it would hear those arguments in a case expected to begin in March 2011. The power companies say that these environmental issues should not be left to judges; rather, they should be decided by legislators who would abide by the Clean Air Act.
In an ironic twist, the Obama administration that has clearly come down on the side of limiting carbon emissions has chosen to team up with the utilities. That is because it would prefer to handle the matter legislatively. Still, the administration is smiling behind the scenes because it places utilities and other corporate interests in the position of having to choose between judicial decrees or federal regulations - rules that are first put out for public comment before they are enacted.
"EPA has already begun taking actions to address carbon-dioxide emissions," says Neil Katyal, acting solicitor general for Obama's team, in a brief. "That regulatory approach is preferable to what would result if multiple district courts - acting without the benefit of even the most basic statutory guidance - could use common-law nuisance claims to sit as arbiters of scientific and technology-related disputes and de facto regulators of power plants and other sources of pollution."
Green Frustration
The environmental community is less sanguine, particularly the Obama administration's choice to join the utilities. It says that the while EPA has the authority to regulate carbon emissions it has been trying to placate industry for so long that absolutely nothing is getting done. At the same time, heavy industry is just waiting until a friendlier group of lawmakers gets voted into office so that they can torpedo the whole effort.
The Natural Resources Defense Council, furthermore, says that the appeals court ruling is based on long-standing law. That is, the states have the strict right to relief from interstate air and water pollution. But this relief cannot be granted through the courts unless the EPA fails to act. Because those regulators have not technically moved forward to curb carbon, the High Court should rule against the utilities.
The exact legalese: EPA has said it would reduce the "increases" in carbon emissions. It did not say it would make "cuts" in those levels, the group says. It and others in the green community see their original lawsuit as a way to cut through the bureaucratic red tape - and to either get the courts to act or to get EPA to move.
"With some in Congress attacking EPA and the Clean Air Act, the federal courts are more important than ever to protect the health and welfare of millions of Americans put in danger by these power companies' enormous carbon pollution," writes David Doniger, with the defense council. He would like the federal courts to be able to force emitters to reduce their carbon releases by a certain percentage.
In their appeal to the High Court, the utilities are saying that the states don't have a legal leg to stand on. Specifically, they argue that they cannot show that that have been harmed by anything those companies have done.
In fact, one could say that they are helping from the standpoint of sustained productivity and employment. The U.S. Chamber of Commerce writes that if these issues are decided by courts it would have "staggering economic implications."
"A court is not a regulator and may not enter relief against a particular defendant where the plaintiff's injury is not traceable to that defendant and where relief against the defendant would not redress that injury," the utilities add in their brief.
Taking a step back and looking at the bigger picture, a casual observer would see an undeniable trend - at least over time - to limit greenhouse gas emissions. If nothing else, this whole issue of whether those releases should be monitored by Congress, the EPA or the courts should be viewed as a victory by the green movement.
Where the environmental community expresses frustration is that no matter the venue, utilities and others are always raising obstacles. For better or worse, the courts might be a more direct approach.
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Comments
Courts and Carbon
The positions of the parties are all clear. Industry and the Utilities, do not want to be held responsible for the Air, Water, and Land Pollution they emit. The "Green Movement," ostensibly representing the rest of the human race, want them to be held accountable.
Bottom line, we pay, either in increased health and environmental terms now and in exponentially more money for environmental cleanup and healthcare later, or in immediate monetary terms of increased utility costs. (The position, in this case, of the Utilities is that there will never be a bill to come due. But if they lose, they will still never pay the bill, they will simply pass it on to the consumer. And this is only right, as you must pay for what you use.) What the courts will decide is the method of payment. For the near future.
So then the actual question is, can the Supreme Court rise above the influance of money. An effort that will prove to be Herculean. As has long been appearent, one which the Legislative branch has long succumbed to, as has the Executive branch.
State Nuisance Suits against China too?
Also, if the ~120 ppm CO2 in excess of the ~270 ppm pre-industrial level is a nuisance, does that mean that the ~270 ppm pre-industrial level is also a nuisance? Would the states then have standing to sue Gaia in federal court seeking redress?