U.S. Supreme Court to hear state climate change case

WASHINGTON–The smoldering debate over climate change will move from Congress to the Supreme Court on Tuesday, when the justices take up a high-profile Connecticut case to determine whether states have the power to curb polluting greenhouse gases.

Democrat Richard Blumenthal brought the suit, along with a handful of other state attorneys general, in a 2004 legal quest to force coal-burning power plants to cut their carbon dioxide emissions. The long-time Connecticut Attorney General is now in U.S. Senate, a player in the parallel political fight over this contentious environmental question.

At issue in the Supreme Court case, American Electric Power Co. (AEP) v. Connecticut, is whether states can use public nuisance laws to force coal-burning power plants to reduce their emissions. It pits environmental and health risks against economic and energy concerns, at a time when these same issues are also brewing in the political arena.

Connecticut and the other parties, including New York, California, and Vermont, argue that AEP and four other companies named in the suit are significantly contributing to global warming through emissions from their fossil-fuel burning power plants. That, in turn, is threatening the public health and welfare of residents in Connecticut and other states, they argue.

“We’re seeing evidence of the impact of climate change now,” said Matt Levine, an assistant attorney general in Connecticut and a lawyer in the office’s environment department. If it’s allowed to continue unabated, he said, the temperature of Long Island Sound will increase and sea levels will rise, adversely impacting local fisheries and estuaries. In addition, New England’s hardwood forests will not be able to thrive in hotter temperatures, cutting short Connecticut’s fall season and dealing a blow to tourism.

“There’s a lot at stake for Connecticut,” said Levine, who will be in the courtroom on Tuesday but not presenting the state’s case. (New York’s solicitor general will be the lead attorney arguing on behalf of the state coalition.)

Other states similarly argue that power-plant emissions have taken a toll, causing increased smog and heat-related deaths in Los Angeles and reducing crop and livestock yields in Iowa. The power companies–the nation’s five biggest emitters of carbon dioxide–are “contributing to and exacerbating these harms by emitting 650 million tons of carbon dioxide each year-10 percent of the entire country’s annual emissions,” the states write in their Supreme Court brief.

The Ohio-based AEP and four other defendants, including Southern Co. and Cinergy Corp., say the state attorneys general are trying to use a simplistic legal tool to accomplish a complex political goal. It won’t cure climate change, they say, but it will cause a spike in energy prices, among other “societal burdens.”

The companies argue that no single source of carbon dioxide emissions can be traceable to global climate change. The states’ lawsuit is unprecedented, they argue, and would unleash a torrent of other legal claims against small and big energy producers alike.

“If accepted, the legal theories underlying these claims will have extraordinary ramifications for courts and society alike,” AEP and the other companies argue in their Supreme Court brief.

They note that carbon dioxide is only one of several greenhouse gases, and that more than 80 percent of emissions come from overseas polluters, in China and India, for example. Individually, each company named in the suit “was allegedly responsible in 2004 for less than one percent of annual worldwide… carbon dioxide emissions, which have been accumulating in the atmosphere for centuries,” the companies’ brief states.

The source of greenhouse gas emissions “are innumerable and ever-expanding,” they argue, while “the alleged effects of climate change are diffuse and worldwide.” There is no nexus “between individual emissions and particular alleged effects of climate change.”

They argue that Connecticut and other states aren’t suing to “obtain meaningful redress” for a public health or environmental harm. “They are suing because, in their view, Congress and EPA are not doing enough to address global warming.”

To be sure, when Blumenthal and other state attorneys general first filed the lawsuit in 2004, during the Bush Administration, the Environmental Protection Agency had determined that it did not have the authority to regulate greenhouse-gas emissions under the federal Clean Air Act.

Then in 2007, in Massachusetts v. EPA, the Supreme Court ruled that carbon dioxide emissions from vehicles were a form of air pollution and that the EPA had the authority to regulate them. In 2009, the Obama Administration said it would start drafting greenhouse-gas regulations, as Congress stalemated over a climate-change bill.

But that is a long, bureaucratic process and no federal greenhouse-gas curbs are expected to be put in place before 2012. In the meantime, Republicans have made repeated efforts to block any EPA action. Earlier this month, for example, Blumenthal and other Senate Democrats defeated, by a 50-50 vote, a Republican-backed bill to bar the EPA from taking any action on climate change

Environmental advocates say the outcome of the political battle is far from certain, making state efforts key to addressing climate change. But in a twist, the Obama Administration has sided with AEP and the other power companies, saying the matter is better left to the EPA.

“We would welcome the EPA enacting regulations that regulate CO2 emissions from power plants,” Levine said. If that happened, he noted, “this case would essentially be unnecessary.”  But until then, he said, it’s the best available option “to protect the citizens of our states.”

Connecticut and the other states are seeking a 3 percent cut in carbon emissions from the five companies for the next ten years. In an initial ruling, a lower court sided with the power companies, determining that the states’ suit involved complex policy questions that should be handled by the legislative and executive branches.

But the Court of Appeals for the 2nd Circuit overturned that ruling, concluding that the states’ claims do not turn on political questions and can be sorted out based on settled principles of public nuisance law.

Where the Supreme Court will come down on this issue is unclear. The 2007 case was decided in a 5-to-4 ruling. The philosophical make up of the court has remained the same, but two new justices have joined. And one of those-Associate Justice Sonia Sotomayor-has recused herself because she served on the 2nd Circuit when it heard the case.