Supreme Court indicates it will dismiss major climate-change case

The Hill ^ | April 19, 2011 | by Andrew Restuccia

[library user]

Key U.S. Supreme Court justices signaled Tuesday they are inclined to give deference to the Environmental Protection Agency rather than the courts on the issue of major power companies' greenhouse-gas emissions.

The justices' comments indicate a major climate-change case, American Electric Power Co. v. Connecticut, will be dismissed by the high court.

"Congress set up the EPA to promulgate standards for emissions, and the relief you're seeking seems to me to set up a district judge, who does not have the resources, the expertise, as a kind of super EPA," Justice Ruth Bader Ginsburg said Tuesday.

The Supreme Court heard oral arguments Tuesday in the case, which has pitted five major power companies and the federally operated Tennessee Valley Authority against six states, New York City and a handful of private land trusts. The states are suing the companies for emitting massive amounts of greenhouse gases, arguing the emissions harm U.S. citizens.

The case has entangled the Obama administration, which, in defending its Tennessee Valley Authority, has also come to the defense of some of the country's major coal-burning power companies, including Xcel Energy and Duke Energy. But the administration is not arguing against limits on greenhouse-gas emissions, it is instead calling on the court to give deference to the EPA's pending climate regulations.

At issue is whether states can show sufficient harm to force major power companies to reduce their greenhouse gas emissions; whether the states’ lawsuit is overtaken, or “displaced,” by EPA climate regulations; and whether the courts should weigh in on the issue at all, instead leaving it to the executive and legislative branches of government.

The case deals with a series of big-picture issues that have come to the forefront of U.S. politics as the EPA begins to implement climate rules and Republicans and some Democrats in Congress seek to block or limit the agency’s authority to do so.

The case comes after the Supreme Court ruled in 2009 that greenhouse-gas emissions could be regulated under the Clean Air Act if EPA found they endanger public health and welfare. The high court's decision formed the underpinning for its authority to issue climate regulations.

During questioning Tuesday, many of the justices asked about whether EPA climate regulations have displaced the need for the courts to limit greenhouse-gas emissions on behalf of the states.

Ginsburg suggested the court would be stepping on the toes of the EPA by limiting power companies’ greenhouse-gas emissions.

“You want the court to start with the existing sources, to set limits that may be in conflict with what an existing agency is doing,” Ginsburg said. “Do we ignore the fact that the EPA is there and that it is regulating in this area?”

Other justices highlighted the difficulty of connecting greenhouse gases to any individual power company once they are emitted into the atmosphere.

“What percentage of worldwide emissions, every one of which I assume harms your clients, do these five power plants represent?” Chief Justice John Roberts asked.

Justice Elena Kagan raised concerns about the enormity of the case, arguing that the states are asking the court to weigh in on a major policy issue.

“[M]uch of your argument depends on this notion that this suit is really like any other pollution suit, but all those other pollution suits that you've been talking about are much more localized affairs — one factory emitting discharge into one stream,” Kagan said. “They don't involve these kinds of national/international policy issues of the kind that this case does”

And Justice Samuel Alito asked about the potential for the case to set a precedent that would lead to future lawsuits resulting in a series overlapping court-ordered emissions standards.

“Even if you won and the district court imposed some sort of limit, would there by any other obstacle to other plaintiffs bringing suits and another district court issuing a different standard?” Alito said.

The Obama administration has gotten ensnared in the case, as the government-operated Tennessee Valley Authority is also being sued by the states.

Gen. Neal Kumar Katyal, acting solicitor general at the Department of Justice, representing the Tennessee Valley Authority, argued Tuesday that the case should be dismissed because it is nearly impossible to directly link greenhouse-gas emissions back to the five power companies in question.

The case, Katyal argued, is one of the broadest that has ever come before the Supreme Court.

“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, and that quantitative difference with the past is eclipsed only by the qualitative differences presented today,” Katyal said.

Climate change is a global issue that must be addressed on a broad scale, Katyal argued.

“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.”

Paul Keisler, representing the petitioners Tuesday, argued that the case should be dismissed because the states are calling on the courts to make a policy determination about greenhouse-gas emissions.

“The states ask that the courts assess liability and design a new common law remedy for contributing to climate change, and to do so by applying a general standard of reasonableness to determine for each defendant, in this case and in future cases, what, if any, its share of global reductions in greenhouse-gas emissions ought to be,” Keisler said.

“That would require the courts not to interpret and enforce the policy choices placed into law by the other branches, but to make those policy choices themselves.”

But Barbara Underwood, solicitor general for the state of New York, representing the plaintiffs, argued that states should step in to work to reduce greenhouse gas emissions while the EPA’s climate regulations are being developed.

“This case rests on the longstanding fundamental authority of the states to protect their land, their natural resources and their citizens from air pollution emitted in other States,” Underwood said.

[ding_dong_daddy_from_dumas]

The president doesn’t have final authority over the EPA. If he tried to exercise that kind of authority, expect talk of “impeachment” next. The same laws that prevent “spoils system” politics protect career bureaucrats.

Who do you think named Lisa Jackson as EPA administrator? The deputy administrator? Craig E. Hooks? etc. etc. etc.

The POTUS doesn't usually have to micro-manage agencies. Obama just named a bunch of green commies to run the cabinet agencies, and a bunch of czars with similar ideology.

They tried to impeach Bill Clinton. but not for firing 80 US attorneys in his first year.

[yup2394871293]

The POTUS doesn't usually have to micro-manage agencies.

The next POTUS will have to. These policies won't end with Obama. Much of what Obama has been doing in office is extending Bush policies. And people like Lisa Jackson didn't just come from an apartment above a Greenwich Village coffee house. She was with the EPA 16 years alone and has been a environmental bureaucrat much longer than that. But I'm sure no political agenda rubbed off on her during her years as a GS-somethingorother. Not at all. The teleprompter in chief is making all the decisions, yeah.

[ding_dong_daddy_from_dumas]

Much of what Obama has been doing in office is extending Bush policies.

You got that right! We don't need another GWB, and we need to ask GOP candidates for POTUS specific questions about the EPA and other expensive and overreaching bureaucracies, but also about amnesty.

I think that "clean air" and "clean water" are legitimate issues. In fact, in my life I used to live in a neighborhood that had truly dirty air, such that when I went outside at night it was hard to breathe. But CO2 as a pollutant? Preposterous.

[hsalaw]

Here’s the plan: the Supreme Court rules that the EPA controls, and then Congress (in 2013) defunds and disbands the EPA. Yay! Game over.

[ding_dong_daddy_from_dumas]

She was with the EPA 16 years alone and has been a environmental bureaucrat much longer than that. But I'm sure no political agenda rubbed off on her during her years as a GS-somethingorother. Not at all. The teleprompter in chief is making all the decisions, yeah.

Jackson and Obama really have the same ideology. When the senate refused to pass crap and trade, Jackson said they had better pass it, or she would move ahead with "command and control" regulation.

I suppose working in the EPA so long is not necessarily a disqualifying factor, but Obama seems to pick the most radical leftists every time he gets a chance. And Steven Chu seems worse than Jackson.

EPA Boss to Speak at Youth Climate Conference With Van Jones and International Socialists

EPA is in desperate need of reform, and that won't happen unless we insist, and maybe not even then.

[Monorprise]

Never really understood the legitimacy of Federal Common law.

[caww]

Climate change is a global issue that must be addressed on a broad scale, Katyal argued.

No it isn't. And lets call it what it is "Global Warming", but of course that wasn't working so let's just chnge the term and we'll change the equation. That's not working either....NEXT.

[eak3]

Why do we keep talking & bitching. The time has well past for that revolution.

Problem is A: when it comes to these kind of things we dont know how exactly something like that just happens and B:we're bitching and complaining behind the comforts of hot cocoa on a soft couch behind a computer monitor

[DAC21]

Basically the courts are saying they do not want to second guess the ‘experts’..................

Well is that the opening we need to go after, litigating that that the “experts” knowingly generated fraudulent date to support there case?

[Puddleglum]

I guess we need Congress to repeal the stupid laws they pass and be more temperate when passing laws in the future. Hah. They are us (or, really, they are the sum of their campaign contributions).

[bert]

The plaintiff’s must pay for the court’s time and the defendant’s time and legal bills

[NCBraveheart]

tar & feathers

[DAC21]

Basically the courts are saying they do not want to second guess the ‘experts’..................

Well is that the opening we need to go after, litigating that that the “experts” knowingly generated fraudulent date to support there case?

[Red Badger]

You have to prove that they ‘knowingly’ generated fraud, and the data they used was ‘knowingly’ false when they used it. Then you have to get to the source of their data, and the source of their data, and the source of their data. It is an intricate can of Gordian worms.

No, the courts are not the answer in this instance. We have to get control of Congress and the Presidency. Then we can limit the EPA’s mission to ordinary pollution, not ‘maybe’ pollution in a 100 years...........

[juno67]

Hard to say if we lost or won. Very difficult and confusing case. The Supreme Court thought about it for a while and decided to punt.

[palmer]

This lawsuit, if allowed to continue, would have established that individual States can sue "carbon emitters" (i.e. energy production) in other States based upon a rather dubious claim of harm to the citizens of their State.

Sounds about right. Commentors on this thread above you seem to think that this gives more power to the EPA, but that is an entirely different problem. We certainly do not want Massachusetts dictating how we produce power in Virginia.

[palmer]

Fukushima is only the latest in a long history of corporate/government mismanagement with global consequences. Experts claiming to show the benefits and safety of their advice continuously bombard us. Yet, our planet has now endured multiple nuclear meltdowns, oil spills, fracking-induced earthquakes,

That's a bunch of crap. Despite two Chernobyl level accidents, nuclear is still relatively safe and fossil fuels add much more value than harm. If you have other ideas for how to obtain energy, please share them.

[palmer]

`precedent' being set by the SCOTUS in deferring to the `experts' of the EPA

Not relevant. The choice was letting 'scientists' in liberal states decide that generating power in other states harms mother earth or having the feds step in. In this case the feds are the lesser of two evils.

[AuH2ORepublican]

“I am confused by the responses here.”

---

Only because you assume that the posters read past that first Ginsburg quote.

“This lawsuit, if allowed to continue, would have established that individual States can sue “carbon emitters” (i.e. energy production) in other States based upon a rather dubious claim of harm to the citizens of their State.

Striking down this case is the right thing to do.”

---

You are 100% correct, but you “cheated” by actually reading the article and thinking things through instead of reflexively spouting off on how the Supreme Court is corrupt.

[allmendream]

“Only because you assume that the posters read past that first Ginsburg quote.” AuH2ORepublican

NOT a safe assumption! LOL!

Thanks for the support!