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.

[Red Badger]

The only solution is to now restrict the powers of the EPA via legislation.
With the current regime in place that is a long way off..............

[668 - Neighbor of the Beast]

We are definitely beyond fix. That leaves fight or flee...when we’re done fiddling, that is.

[KC Burke]

The Constitution set up the Congress as the legislative body. We saw in the bussing issue how court appointed special supervisors failed as much as the bad legislation did. This instance is no different.

Bad legislation by bad legislators creating large agencies with broad powers is the problem, not court proceedings which would amount to legislating from the bench.

If we want good careful legislation, we must elect good legislators — few other remedies will due.

We keep trying to not have this country screwed up by their actions when the only way to have them accountable is for the giant screw-ups to go foreword. It takes a big mess to get our citizenry interested in government.

[giotto]

So far he's done a lot of damage. . .

And that's only the damage we know about.

[Red Badger]

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

[NonValueAdded]

since all parties use the words “climate change” should not there be a motion to dismiss based simply upon the fraud therein represented?

[Raycpa]

Translation: Get someone else to do your dirty work, we aren’t playing.

[Dead Corpse]

If voting could have really changed things, the GOP wouldn't have pass a $350 million dollar budget reduction when we're drowning in trillions worth of red ink.

You are dreaming if you think the Ballot box is still viable.

[Red Badger]

“I’m from the Government, and I’m here to....”
[BANG]
“HELP!!!!!!!!..............”

[Windflier]

Why do we keep talking & bitching. The time has well past for that revolution. Now if ya can find 50 people willing you will be lucky. We totally deserve what we get via our inaction.

Every people has their cultural breaking point. As bad as things are in the US, we haven't yet hit ours. Wait until folks can't afford groceries or gasoline any longer. That'll be the point.

[Windflier]

We have slow-moving revolutions. We just had one last November. In 2012 we’ll have another; in 2014 and 2016, others. By then the evil done by the Obamatrons will be known by all.

Very good point, Pabiance. I sometimes tell people that the revolution's already begun (nodding to the 2010 midterms and the Tea Party).

[ex-Texan]

Masters Of The World Meet To Play God With The Climate

Excerpt:

* * * Economy:  The model of centralized elite banking management has been an abject failure.  All central banks in history that have used fiat money -- most of which financed both sides of wars -- have failed in that they have bankrupted their nations and only have enriched those in control.  The current exposure of the U.S. Federal Reserve is finally reaching a crescendo, but our managers are already a step ahead discussing the endgame of a one-world currency to solve the inadequacies of the past.  I think we have had enough examples of their central planning skills.

Health: Between the EPA, FDA, and USDA -- just to cite U.S. agencies -- our elite researchers, scientists, and policy makers have been responsible for millions of deaths, conservatively.  And it is only getting worse, as this global health tyranny aims to criminalize the food and supplements that are actually proven to extend our lives.  The key poisons they enable include: mercury, aspartame, MSG, (most) vaccines, and GMO's; all proven to reduce cognition, bodily health, and life expectancy.  

Environment: 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, and global fallout from wars using depleted uranium -- all of which have contaminated Earth and poisoned future generations beyond imagining.  The only success these elites can document is the mass killing by dictators like Genghis Khan, Mao, Hitler, and Stalin who eliminated a conservative total of over 100 million people, thus reducing CO2.  Well done if you are a nihilist.

With such a track record of desolation for all but the top directors, we had best pay attention to their own words about what direction they have in store for us next.

Most alarming about this semi-clandestine meeting is that the very premise upon which they base this need for global orchestration -- Global Warming -- has been thoroughly debunked by any climatologist not beholden to a government sponsored think tank or agency.  Their famously cited Plan B for inevitable climate change is nothing more than a wish list for those who wish to de-industrialize productive nations and consolidate control through wealth redistribution.  Not a good way to start saving people.  

And Yada, Yada, Yada

[allmendream]

I am confused by the responses here.

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.

Acknowledging the EPA isn’t, but as a mechanism Congress has put in place to regulate interstate commerce such that State A cannot sue to halt energy production in State B, it seems to fit the bill.

[andy58-in-nh]

As I understand, President Nixon created the EPA forty years ago, by Executive Order. A similar such order might redefine or restrain its role - but the current White House occupant would be far more likely to expand it.

Now, I certainly invite any Constitutional law scholars out there to check my assumptions, but I think this is where we are:

Only Congress might presently act to withdraw authority from the agency through legislation - which they certainly will not do as long as the Democrats control the Senate. Otherwise,a specific challenge would need to be brought before the Supreme Court, invalidating the agency's power as an extra-Constitutional exercise of executive authority. But, given the expansive view the Court has long taken toward the Commerce Clause and toward executive prerogatives generally, I don't see that happening either.

[reasonisfaith]

So you guys are a normal court guided by principles of justice, until it comes to Obamacare or global warming.

Then you’re a panel of Stalinists.

[Art in Idaho]

So far he's done a lot of damage. . .

And that's only the damage we know about.

That's for sure. Knowing all the socialists/academics/czars have access to all kinds of classified data makes one lose sleep at night. Sleep? Do you want a list? When we're talking about us, it's one thing, but when you're talking about our kids, grandkids and the obligation to generations unborn, it's a different story. What, me worry?

[mmercier]

establishment, not reestablishment.

The new system will inevitably fall in similar manner, later on.

This is the mechanism through which we progress.

[Gatún(CraigIsaMangoTreeLawyer)]

Thank you for your reply.

My thoughts in general:

^%$(^ )(@#%$ %&%^$#!!!!

Thank you again.

My very best to you.

[eclecticEel]

I can’t say that I’m certain which side is right here. The argument seems to be whether states should enforce eco-fascism on us or whether that role should be left to the EPA.

[JRochelle]

Did I miss something? Isn't this a good thing?

The 6 states cannot sue the power company demanding millions? Maybe I am missing something but after reading the article I understand it that these 6 states want money for greenhouse gases that these power companies have released but the power companies are saying no because there are actually no guidelines yet in how much gases they can release?

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.