Argument preview: The courts and global warming (UPDATED)
on Apr 16, 2011 at 6:56 pm
UPDATED Monday 1:30 p.m. The following post has been expanded to include arguments from the merits briefs and amici filings.
The Supreme Court will hold eighty minutes of oral argument at 10 a.m. Tuesday on a major challenge to the use of the judiciary to impose controls on “greenhouse gas” emissions that may contribute to climate change, such as global warming. In American Electric Power Co., et al., v. Connecticut, et al. (10-174), the argument for the electric utilities facing “public nuisance” lawsuits will be made by Peter D. Keisler of the Washington, D.C., office of Sidley Austin. Arguing for the federal government in support of the utilities will be Acting U.S. Solicitor General Neal K. Katyal, and for a group of states will be New York’s state Solicitor General, Barbara D. Underwood. The time for argument has been expanded from the usual 60 minutes to 80; the utilities and the government will have 20 minutes each, and the states 40.
Background
Deep in the traditions of the common law, dating well back in American history and seven centuries back in English history , is the idea that something may need to be done to stop what is called a “nuisance.” Generally, the notion is that someone may be doing something, or failing to do something, and in the process causes annoyance or actual injury to someone else. Technically, it is a common law tort. And, as a common law concept, it has developed as a court-fashioned doctrine, with remedies in the earliest years limited to money damages but, as time moved on, courts could use their powers to directly mandate — or inhibit — conduct to deal with the nuisance.  A nuisance is considered to be public in nature if it poses a threat to public health or safety; it is a private nuisance if the only harm done is to another private person or entity.
The Supreme Court for decades has recognized a federal common law of nuisance, but it has said repeatedly that, if Congress passes specific legislation that seeks to protect public health and safety against a defined “public nuisance,” the courts may and probably will have to let those remedies work in place of court-crafted mandates. Still, the concept has not died as a mode of challenging threats to the environment, despite the existence of a wide array of federal laws in that field — including such statutes as the Clean Air Act, the Clean Water Act, and the Environmental Protection Act.
Lately, there has been a revival of public nuisance lawsuits in the federal courts, and one of the most active complaints in such cases these days is that emissions of “greenhouse gases,” especially carbon dioxide from coal-fired electricity-generating plants, are causing a public nuisance by contributing to climate change, including heating up the planet. Those grievances multiplied as the U.S. government agency most directly charged with looking after the environment — the Environmental Protection Agency — resisted the pressure to attack “greenhouse gas” emissions. EPA, in fact, had insisted that Congress did not give it the authority to deal with climate change. The agency doubted that there was a link between “greenhouse gases” and global warming.
The Supreme Court, however, ruled in 2007 in the case of Massachusetts v. EPA that the Clean Air Act did, in fact, give EPA the authority to regulate emissions of four gases from new automobiles and trucks, because those fell well within the Act’s phrase “air pollutant.” The Court, however, did not direct EPA to start taking action, leaving it up to the agency to decide whether there was a sufficient link between auto exhausts and global warming to justify regulation. That ruling split the Court 5-4.
EPA did not leap immediately into the use of the authority that the Court found it had. While it was still in the process of deciding whether, in fact, it should begin regulatory activity, the courts were already getting involved in attempts to fill what some advocates had argued was the regulatory gap. In fact, three years before the Supreme Court spurred EPA to address the issue of global warming, eight states, New York City, and three land trust organizations had started two lawsuits — all based on the common law public nuisance theory — against what they argued were the five entities that were producing the most greenhouses gases into the atmosphere.
The five were the Tennessee Valley Authority, the government’s major power-generating entity, plus four major electricity-generating companies: American Electric Power Co., Cinergy Corp. (now part of Duke Energy), Southern Company, and Xcel Energy Inc. (Also sued was an American Electric subsidiary, but it does not generate power.) The lawsuits contended that the five were major contributors to elevated levels of carbon dioxide and to global warming; together, the lawsuits asserted, they contributed about one-fourth of the U.S. electric industry’s emissions of carbon dioxide, and 10 percent of all such emissions from human activity in the U.S. They contended that greenhouse gases were threatening “abrupt and catastrophic change in the earth’s climate.”
The challengers sought to have the courts hold TVA and the companies jointly liable for creating a public nuisance, and permanent court orders to require each to “abate” the nuisance by capping carbon dioxide emissions and then reducing them by specific percentage goals each year for at least ten years.
A federal judge, however, dismissed both of the lawsuits, now joined, in September 2005, concluding that the challenges raised political questions that the courts were barred from deciding. The judge found the courts had no jurisdiction to hear the case, and that, in any event, the challengers had not put forth a valid legal claim.
The case went up on appeal to the Second Circuit Court. At the time it held a hearing, in June 2006, then-Judge Sonia Sotomayor was a member of the Circuit panel. Before the panel ruled, Sotomayor had been elevated to the Supreme Court. Without her, the remaining two judges on the panel ruled in September 2008 that the challengers’ case could go forward in federal court. It allowed the eight states to sue, finding that they were seeking to look after their citizens’ interests.
The Circuit Court panel said the case did not involve a political question. It ruled that a single decision in a common law nuisance case could not set policy, so there would be no intrusion on the powers of Congress and the federal Executive Branch.  Courts often fashion remedies in nuisance cases, it said, so that could be done in this case. This is “an ordinary tort suit,” the panel said.
In any event, it said, the political branches of the government do not have a unified policy on greenhouse gas emissions with which a federal court ruling might interfere. Turning to the role of EPA, the panel said that, until that agency took action, courts could not be sure whether the government would deal with the problem raised in this case. It noted that the agency had not yet even decided that greenhouse gases were subject to regulation under the Clean Air Act. (The full Circuit Court refused to rehear the case en banc.)
Petition for Certiorari
In August last year, the electric utilities facing trial on the “public nuisance” claims filed their petition in the Supreme Court, seeking to head off that trial. It was a highly significant follow-up to the Court’s first greenhouse gas case three years earlier, and the petition posed a major challenge not just to the two combined lawsuits against the utilities and TVA, but to the whole concept of using “public nuisance” law to control only very limited sources of emissions but with court orders that would sweep very broadly. The Second Circuit ruling, the companies’ petition said, has “extraordinary breadth and consequences.”
The petition raised three questions: first, whether the states and the land-trust organizations had the right to sue at all (the “standing” question); second, whether a lawsuit may be filed to try to cap emissions when the federal Clean Air Act deals directly with the same topic, with EPA assigned enforcement power; and third, whether there are any standards that could guide a court in figuring out how to cap emissions.
Recalling the hundreds of billions of dollars that the tobacco industry has been paying for years over the health hazards of smoking, the utilities’ petition argued that “the potential compensation for climate change impacts would make the tobacco payouts look like peanuts.” The ramifications of the appeals court decision, the petition argued, are “staggering,” because there has been more than a century of gas emissions emitted by “billions of independent sources,” yet these “public nuisance” lawsuits were singling out only one such source, a goup of utility companies and TVA.
Three weeks after the utilities’ appeal was filed, the Obama Administration stunned — and angered — the environmental community by urging the Supreme Court to erase the Circuit Court ruling clearing the way for the combined lawsuits to proceed, and to order the Circuit Court to take into account what the EPA had been doing in the 11 months since the Circuit Court had issued its decision. TVA had not filed its own appeal to challenge the appeals court decision, but opted instead to file a brief supporting the utilities, but basically seeking a return of the case to the Circuit Court.
The government brief, filed by the Solicitor General’s office, argued that the EPA had taken five different steps — four of them since the Circuit Court ruling, one before — to move ahead to use the powers the Supreme Court had found that it had. It also said that it was specifically reviewing, on remand from the D.C. Circuit, whether and how it might take specific action against emissions from electricity-generating plants like those involved in this dispute.  The Circuit Court’s comments about EPA’s failure to act, the brief said, were now out of date.
A dozen states joined in support of the electric utilities, in the states’ own capacity as operators of power plants and other sources of gas emissions. The U.S. Chamber of Commerce also lined up with the utilities, as did a group of law professors in a particularly aggressive amicus filing. The professors argued that the “public nuisance” lawsuits were “part of a broader, misguided push for judicial regulation,” targeting America’s “core industries — electric utilities, automobile manufacturers, energy producers, and chemical companies.”
The eight suing states, plus the land-trust organizations aligned with them in the challenge, urged the Court to deny review outright. Their opposition brief noted that the Second Circuit decision had come in advance of any trial, and the Circuit Court had in fact returned it to the District Court to explore a number of legal issues. There will be time enough to review a number of issues raised in the petition and by TVA, this brief contended, after the case returned to the District Court. The groups did defend their legal right to bring the “public nuisance” lawsuits in the first place.
The Court granted review on Dec. 6, but Justice Sotomayor took no part in the order, no doubt because she had sat on this case while a judge of the Second Circuit, although she had not taken part in the decision the Justices agreed to review.
Since the Court granted review, the case has taken on an even more important role for environmental groups, since there is now a very strong effort among many of the Republicans who now control the House of Representatives to curtail EPA’s powers, especially in the field of climate change, so the “public nuisance” alternative seems to the conservationists to be even more significant than before. Although President Obama has vowed to protect EPA from the efforts to severely curtail that agency’s powers, it is unclear how long he and his supporters can hold out against the GOP assault on the agency.
Merits Briefs
The briefs on the merits, filed by the four private utilities and by the Justice Department (together with the TVA), brought out more clearly the different approaches being advocated on the foundation question of whether the states and land-trust groups had any right to sue at all under a “public nuisance” theory. Those briefs also sought to leave the impression that the EPA is moving headlong to regulate greenhouse gas emissions, despite years of hesitancy or, at times, resistance to regulatory action.
On the “standing” issue, the utilities’ brief urged the Court to throw out the case under Article III, contending that the challengers cannot meet any of the constitutional tests for suing in the federal courts.  Only as a backup point did that brief suggest that, as a matter of judicial “prudence,” the Court should keep the courts out of this complex field of regulation.
The Solicitor General’s brief for the government and TVA asked the Court to stay away from the Article III question, and to avoid rejecting the lawsuit under the “political question” doctrine, and instead to reject this lawsuit only on the basis of “prudential” avoidance.  In fact, the government/TVA brief indicated that the states could probably satisfy Article III “standing” requirements, if it came to that, under the Court’s Massachusetts v. EPA decision.  This brief, then, offered the Court a wider range of options, less sweeping in scope, on the “standing” issue.
The briefs by the utilities and by the government/TVA were as one, though, on the complexity of the gas emissions regulation question, and on the primacy they advocate for the Clean Air Act and its enforcement by EPA. The government/TVA brief, in fact, went so far as to argue that EPA has been engaged in a “regulatory cascade” of action — far different from its earlier, insistent policy of hands-off on climate change.
The two briefs on that side also agreed on the prospect of every individual in the nation having the opportunity, if this suit went forward, of bringing a similar lawsuit, since everyone could claim some injury from exposure to climate change.
Six states remained in this litigation at the merits briefing stage; the states of New Jersey and Wisconsin had dropped out, apparently as a result of internal politics in those states.  The states still involved and the land trust organizations filed separate merits briefs, instead of the combined effort they had made before review was granted.
The states’ brief on the merits boldly urged the Court to dismiss the grant of review as “improvident.” It conceded that, if EPA did move forward — by a target date of 2012 — to limit emissions of carbon dioxide from electricity-generating plants, then this nuisance lawsuit would “be displaced.” Moreover, it argued, if EPA does continue on schedule toward regulating those plants, the District Court in this case could stay the case.
However, the brief went on, “the potential for emission limitations in the future does not displace the federal common law in the present. Until EPA addresses the nuisance, [the utilities and land trust groups] are entitled to pursue relief under the federal common law of public nuisance, just as they have in the past for other threats to the public health or welfare.”
Further urging caution, the states’ brief noted that the case is at the dismissal stage, and questions of proof are not before the Court, so it is possible that the challengers might ultimately lose on the merits. If the case did survive after the proof is forthcoming, the brief added, “the judiciary is competent to hear and decide those matters on the merits, without invading the exclusive province of the political branches of government.”
The land trust groups in their merits brief (for the Open Space Institute, Open Space Conservancy, and Audubon Society of New Hampshire) sought to assure the Court that the number of groups or individuals who would be able to bring such a nuisance lawsuit is actually limited. The brief suggested that the land trust organizations face a “special injury” because of the threats to their properties, and that by itself is sufficient harm to allow at least these groups to get into court.
The organizations’ brief also argued that the courts are entirely competent to handle such nuisance litigation, and that, in any event, there is no certainty that EPA will go forward with its targeted efforts against the utilities as sources of carbon dioxide.
As befits an issue as hotly debated as global warming is, at least in politics if not in science, there was a substantial outpouring of amici filings — 33 in all (by no means a record, but a srong showing nonetheless). Among those briefs on the merits, there is a numerical advantage of nearly 3 to 1 for those opposing this type of nuisance lawsuit.
If it is fair to generalize, the support for the electric utilities’ is centered among business firms, trade groups for business, and conservative or libertarian advocacy organizations, along with 23 states. as potential sources themselves of carbon dioxide emissions. And, again generalizing, the support for this type of nuisance lawsuit is largely centered among progressive or liberal advocacy organizations, environmental protection organizations, professors in the field of torts, and four states, claiming to be defenders of the health and safety of their citizens (some of these states have been involved in their own nuisance litigation over global warming).
Analysis
With Justice Sotomayor not taking part, the Justices who might favor allowing the “public nuisance” claim to go forward in federal court may be short of majority support. Only three Justices from the majority in the Massachusetts case in 2007, allowing the states to sue to try to get EPA to act, remain on the Court: Justices Stephen G. Breyer, Ruth Bader Ginsburg and Anthony M. Kennedy. Even if they were to draw the support of Justice Elena Kagan, that, of course, would not make a majority. The other four Justices were strenuous dissenters in 2007, arguing both that the states had no right to sue to challenge EPA, and that EPA had made a valid decision in finding it lacked the authority to regulate emissions under the Clean Air Act.
Those four then-dissenting members — Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Antonin Scalia and Clarence Thomas – would have to find  a way to muster another vote if they have not changed their minds since 2008 and would now want to block any nuisance-based challenge to greenhouse gases, because a 4-4 split would simply affirm the Second Circuit decision, allowing this case to go to trial.
Justice Kennedy (always a potential fifth vote in a major controversy) might well take the view that the Massachusetts decision had the intended effect — it did, eventually, stir EPA to action — so there may be no need now to support “public nuisance” litigation as an alternative. Moreover, Kennedy, in his recent opinion for the Court in the Arizona tuition tax credit case, wrote a very strong essay urging the courts to be cautious in taking on litigation unnecessarily, raising serious issues of separation of powers. He might be persuaded, perhaps quite easily, to join in a ruling that the states and the land-trust groups do not have standing to bring their nuisance claims.
If the Court were to reach the merits, it seems doubtful that a majority can be assembled to support the expansive use of judicial power that the states are advocating and that the Second Circuit embraced. Whether a majority of the Justices thinks the EPA either has done too much or too little, it would seem fairly easy to rally five votes around the notion that the Clean Air Act is a better alternative for dealing with the emissions problem (if it must be dealt with) than a rather open-ended “public nuisance” doctrine.
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