Administration Backs Utilities’ Appeal Against Global Warming Ruling

The Obama administration is frustrating environmentalists by urging the US Supreme Court to vacate a decision by Federal Court of Appeals that Climate Change is a public nuisance. In a brief filed on Tuesday, by Solicitor General Neal Katyal on behalf of the Tennessee Valley Authority, the administration asked the court to vacate the decision that allows groups and individual’s to sue the utility companies for contributing to global warming, citing that the EPA is already regulating this issue.


In 2005, Connecticut, seven other states and the City of New York, joined by environmental groups sued greenhouse gas (GHG) emitting energy utilities claiming that their climate change causing emissions were a public nuisance. The suit was aimed at six big offenders: American Electric Power, Duke Energy, Southern Company, the Tennessee Valley Authority, Xcel Energy and Cinergy Corp. In September of 2005 the district court ruled in favor of the utility companies finding that the regulation of greenhouse gases is a non-justiciable political question (in other words they felt it was an issue more appropriately addressed by another branch of government).

In September of 2009 the 2nd U.S. Circuit Court of Appeals reversed the decision citing that “simply because an issue may have political implications does not make it non-justiciable.” The defendants argued that the issue is addressed by the Clean Air Act and that Federal Jurisdiction displaces any common law claims, adding that in 2007 in Massachusetts v. EPA, the court held that global warming gases fall under the regulatory jurisdiction of the EPA. Despite the EPA’s announcement in April of 2009 that they were going to start regulating them, the court denied the claims pointing out that “the EPA does not currently regulate carbon dioxide.”

This ruling allows affected parties to seek redress against greenhouse gas polluters by bringing common law nuisance claims to the court. In a nuisance claim, a property owner is claiming that the defendant is interfering with the owner’s enjoyment of his own property and asks the court to stop the defendant or force them to pay damages. In the Connecticut v. AEP, the plaintiffs claimed that by contributing to global warming, the utility companies were decreasing property values, hurting local economies, destroying natural habitats and putting human health and welfare at risk. Instead of damages, they sought to have the court mandate caps on the utility companies’ GHG emissions.


The utility companies argue that the EPA is moving forward on these regulations, and further action should be taken by Congress, not individual plaintiffs. Their petition says:

    “The ramifications of this holding, if it is allowed to stand, are staggering. Virtually every entity and industry in the world is responsible for some emissions of carbon dioxide and is thus a potential defendant in climate change nuisance actions under the theory of this case.”

The administration supported this side in their own brief stating that:

    “Since this court held in 2007 that carbon dioxide falls within that regulatory authority, EPA has taken several significant steps toward addressing the very question presented here. 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 both within their districts and nationwide.”

The plaintiffs in the case argue however that the EPA regulations don’t go into affect until 2011 and some in 2016. They state that even then, they only address the largest and newest sources of CO2 and give a pass to existing coal fired power plants. Many feel that the dates that have been set are too far off in the future and will get pushed further away as the industry challenges them in court. Many of the concessions that have been made on climate change were given to gain support from industry leaders and conservatives to gain support for a climate bill which Congress can’t seem to pass.

Clearly, a flurry of individual civil suits aimed against the utility companies isn’t the most efficient way to address the problem, but at least the Connecticut v. AEP ruling provides environmentalists with an alternative avenue to combat climate change if the EPA and the Congress fail to do their jobs. This is why the administration’s involvement is so frustrating. Many feel betrayed by an administration that has not been as progressive on the environment as they hoped. Matt Pawa, an attorney representing plaintiffs lamented:

    “We feel stabbed in the back. This was really a dastardly move by an administration that said it was a friend of the environment. With friends like this, who needs enemies?”

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