The US Supreme Court heard oral arguments April 19 in American Electric Power Co. v. Connecticut regarding whether electric utilities contributed to global warming. The court is being asked to decide (1) whether states and private parties have standing to seek judicially-fashioned emissions caps on five utilities for their alleged contribution to harms claimed to arise from global climate change caused by more than a century of emissions by billions of independent sources; (2) whether a cause of action to cap carbon dioxide emissions can be implied under federal common law where no statute creates such a cause of action, and the Clean Air Act speaks directly to the same subject matter and assigns federal responsibility for regulating such emissions to the Environmental Protection Agency; and (3) whether claims seeking to cap defendants’ carbon dioxide emissions at “reasonable” levels, 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 US Court of Appeals for the Second Circuit ruled in 2009 that states can sue power companies for emitting carbon dioxide, reversing a district court decision that found the plaintiffs’ claim was a non-justiciable political question. The lawsuit was brought by eight states—California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont and Wisconsin—as well as New York City and three land trusts, against coal-burning utilities American Electric Power, Southern Company, Xcel Energy, Cinergy Corporation and the Tennessee Valley Authority. At oral argument Tuesday, the justices appeared skeptical of the states’ arguments, implying that the Environmental Protection Agency would be better equipped to deal with emissions standards than federal courts. The Obama administration has sided with the power companies.
From Jurist, April 19. Used with permission.
Similar litigation has been brought by a threatened Native Alaskan coastal village.