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In December, 2010, the Supreme Court agreed to hear a challenge by five of America's biggest electric power companies to a lower court ruling that they could be forced to reduce greenhouse gas emissions under federal nuisance laws. The lawsuit, Connecticut v. American Electric Power, was brought by Connecticut and seven other states in 2004. A federal circuit court ruled in 2005 that the plaintiffs could not proceed because the suit raised political questions that could not be resolved by the courts. The Court of Appeals reversed that decision in 2009, ruling that the states could proceed under nuisance laws.
The defendant utilities are American Electric Power, Southern Co., Xcel Energy, Duke Energy and the federally owned Tennessee Valley Authority. The utilities argue that the consequences could be severe if judges could order emissions caps. In a separate brief, the Obama administration said the executive and legislative branches of government should handle CO2 regulation, not the courts. It also argues that recent EPA efforts to regulate greenhouse gas emissions should displace or supersede the plaintiffs' ability to sue under common law.
The case will be argued in the spring, after the Court of Appeals for the District of Columbia decides another related GHG case - whether to stay greenhouse gas regulations already finalized by EPA, parts of which are scheduled to go into effect January 2. The Appeals Court decision could have an impact on the Supreme Court's view of the case. If the Appeals Court stays the rules, the Supreme Court might be persuaded that the common law still has a role to play, since there would be no rules in place. On the other hand, if the rules remain in place, it could be argued that EPA’s regulations have effectively displaced common law nuisance. |
