Supreme Court justices question states’ global warming lawsuit

WASHINGTON–The Supreme Court waded into the political and environmental thicket of global warming Tuesday, in a case that will determine whether Connecticut and other states can force power plants to reduce their heat-trapping greenhouse gas emissions.

The line of questioning from the justices did not point to any easy conclusions about how they might rule in the case, which pits five major power companies against a coalition of states, including Connecticut, Vermont, and New York, along with several private land trusts. But several justices seemed skeptical that a federal court, rather than the Environmental Protection Agency, was the best venue to address the complex questions raised by the case.

The fundamental issue–whether and how to regulate carbon dioxide pollution–has also tied Congress in knots, and it’s pending before the EPA too. The Obama Administration signaled in 2009 that federal environment officials would draft regulations aimed at reducing carbon dioxide emissions.

But that’s a long process–subject to public comment, legal challenge, and political obstruction. Republicans in Congress have made repeated efforts to block any EPA action. Those parallel battles were front and center in Tuesday’s legal tussle before the Supreme Court.

Peter Keisler, the power companies’ lead lawyer, opened his pitch by saying the case involved “policy choices,” and the states were asking the courts “to perform a legislative and regulatory function.”

Highlighting the scope of the case, Keisler said that global warming is among the “most complex, multifaceted, and consequential of any policy issue now before the country.”

The power companies argued that the states had no right to sue because the alleged harm Connecticut and other states had suffered could not be definitively linked to the power-plants’ activities–and the remedy the states are seeking, a reduction in emissions, would not solve the climate change conundrum.

“The global nature of this phenomenon makes it different because every sector of the economy worldwide produces greenhouse gases, and there is no geographic nexus… between the source of the emission and the victim that claims the harm,” Keisler said.

Two of the court’s liberal-leaning justices, Elena Kagan and Ruth Bader Ginsburg, disputed that notion. They both pointed to a 2007 ruling granting the EPA authority to regulate carbon dioxide as air pollution, saying the case would suggest the states did have the right to sue, or legal “standing.”

Connecticut and the other states are asking that the five companies be made to reduce carbon emissions by 3 percent per year for the next ten years. In an initial ruling, a lower court dismissed the suit, agreeing with the power companies that the case involved tough policy questions that should be handled by the legislative and executive branches.

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

In today’s argument, Justice Antonin Scalia, a conservative, asked what good it would do the power companies to have the case dismissed, noting the plaintiffs could then just file their claims in state court and use state tort laws to seek redress.

“I would frankly rather have federal judges do it,” Scalia said. He also questioned the power companies’ contention that regulatory action by the EPA should trump federal common law.

“The EPA is given authority to regulate other pollutants, including those that do not go up into the atmosphere, but that does not prevent California, for example, from enacting stricter standards for its automobiles,” Scalia noted.

But the separation of powers should dictate that “the presumption is in favor of lawmaking by Congress and not lawmaking by courts,” Keisler responded.

“Here Congress has established a process and it’s a process in which the states and the private parties here can participate,” he added. “And it would be completely inconsistent with that process if they could also take a complete end run around it and go to court and ask courts to make the decisions that Congress has assigned to EPA.”

Justice Anthony Kennedy, often a centrist swing vote on the court, asked if “part of the dynamic” should focus on “how imminent the federal regulation is?”

Keisler said no, because Congress had, through the Clean Air Act, given the EPA authority to regulate carbon emissions and that’s what matters-not where EPA’s bureaucratic process stands.

One of the defendants in the case is the federally-owned Tennessee Valley Authority. That put the Obama Administration in a tight spot, as it seeks to address climate change but on its own terms. So the Justice Department weighed in on the side of the other power companies.

The Justice Department’s Acting Solicitor General, Neal Kumar Katyal, painted the case in even broader terms than Keisler. “In the 222 years that this Court has been sitting, it has never heard a case with so many potential perpetrators and so many potential victims,” he said in his opening remarks.

“The very name of the alleged nuisance, ‘global warming,’ itself tells you much of what you need to know. There are billions of emitters of greenhouse gasses on the planet and billions of potential victims as well,” Katyal said.

Kennedy said that seemed like a good reason to let the case go to trial in the district court–so the two sides could determine through an exploration of the facts whether there a provable harm committed by the power companies or not.

But Katyal argued that an issue of “this scale and scope” could not be “cut down to judicially manageable standards.” It needs, he said, to be handled by the EPA.

But Justice Samuel Alito, a conservative appointed by George W. Bush, said it didn’t seem that clear cut. “We don’t know what EPA may do down the road, we don’t know what Congress may do down the road. So don’t we have to have some idea about when this takes place in order so that this precedent may be applied to the future course of conduct?” Alito asked.

Yes, Katyal answered, “and here’s what’s happening.” The EPA has issued a finding that carbon emissions are significant pollutants, he noted, and the agency is moving to regulate.

Connecticut and other states agreed that any action by the EPA action would make their case moot. “This is a very peculiar moment in time for this case to arrive in this court,” acknowledged Barbara Underwood, New York’s solicitor general, who argued the case on behalf of the state coalition.

But the “promise” of federal regulation was not enough to “close the courthouse door” to more immediate redress for the states, Underwood argued.

“This case rests of the longstanding authority of the states to protect their citizens,” Underwood told the court. “Their lands, their citizens, their businesses are being injured” by the heat-trapping gases emitted from these major power plants.

And until federal regulators act, she said, the states must be able to use the federal common law of public nuisance to shield their citizens and land from the harm caused by power-plant emissions in other states.

She said the defendants–American Electric Power Co. and four other plants, plus the Tennessee Valley Authority–could take “reasonable steps” to reduce their CO2 emissions and thus reduce global warming.

But several of the justices–from the liberal Ginsburg to the conservative Alito–grilled her on how a district court judge could be expected to wade through the complex environmental and economic issues and come up with a practical, equitable solution.

How could a district court, Alito asked, determine what is a “reasonable” remedy in a case that involved balancing the cost of increased energy prices, lost jobs, and other adverse affects against the benefits of reduced environmental damage.

Underwood pointed to a Tennessee case where a district court ordered a reduction in sulfur emissions, but Alito stopped her short. But do you seriously argue this isn’t orders of magnitude more complicated than that case?” he asked.

Underwood conceded that global warming was more complicated, but said there would be plenty of evidence for the court to examine.

Ginsburg said that emissions reductions sought by the states “sounds like the kind of thing that EPA does,” and she suggested the states’ were asking the district court to act “as a super EPA.”

Noting that EPA was “taking the first steps” toward regulation of carbon dioxide, she asked, “You want the court to set limits that might be in conflict with what an existing agency is doing. Do we ignore what the EPA is doing?”

No, but “something that is imminent may never happen,” Underwood said.

Indeed, the EPA is not expected to issue regulations on power-plant emissions before 2012, and that effort could easily be unraveled by a shift in political power at the White House or in Congress.

“A lot can happen to delay or derail the fulfillment of a promise,” Underwood said. “It may well be that there will be a regulation soon that displaces, but it would be very surprising if this Court concluded that the promise of regulation is enough to displace the Federal common law.”

The justices also probed the question of whether allowing this case to move forward would spark a wave of subsequent litigation against other energy producers.

Noting that the states had lumped together the five biggest producers of CO2 emissions, Scalia asked why that couldn’t also be done with cows, which emit methane, another greenhouse gas. Wouldn’t that open up all the nation’s cattle farmers to these lawsuits, Scalia asked?

Underwood said they were only seeking action against “significant” contributors to global warming and said there were “many ways to draw the line.”

Chief Justice John Roberts said the greatest benefit environmentally would be to shutter the plants entirely. Underwood said the states had not asked for such a sweeping move, and noted there were smaller steps they could take to cut emissions.

She said the states had even determined that the power plants could achieve a 3 percent reduction–the solution Connecticut and others are seeking–without increasing consumers’ electricity bills.

“That may seem …” Underwood paused for a moment.

“Implausible is the word you are looking for,” Scalia quipped.

Mathew Levine, as assistant attorney general in Connecticut who sat in the courtroom on Tuesday, said he was “pleased” at how the arguments had played out, although he declined to venture any guess about the outcome.

In a statement, Connecticut Attorney General George Jepsen said Connecticut and the other states “took this action because we cannot stand idly by while carbon dioxide continues to be emitted without any controls.”

“We believe that the law is clear,” Jepsen added, “that the States have standing and this is a viable cause of action. We look forward to making our case at trial.”

The 2007 EPA case on carbon emissions 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 2^nd Circuit when it heard the case.