Reflections on the Supreme Court’s Consideration of Global Warming Regulation

by Mark L. Perlis, Dickstein Shapiro LLP

The U.S. Supreme Court recently heard oral argument in American Electric Power Co. v. Connecticut that should decide whether emitters of greenhouse gas will be subject to private lawsuits seeking to abate such emissions as a nuisance under federal common law.

A 2007 Supreme Court decision, Massachusetts v. EPA, previously established that greenhouse gas emissions are potentially subject to regulation by the Environmental Protection Agency (EPA) under the existing Clean Air Act. On the strength of this decision, the EPA has initiated rulemaking proceedings to regulate greenhouse gas emissions from power plants and other large sources within the framework of the Clean Air Act.

At stake in the case pending before the Supreme Court, in which a decision is expected by late June, is whether greenhouse gas emissions will be subject to judicially fashioned regulation separate and apart from EPA regulation under the Clean Air Act.

Most commentators who heard the oral argument in American Electric Power Co. v. Connecticut seem to expect that the Supreme Court will throw out the nuisance lawsuit brought by states and environmental organizations seeking to enjoin uncontrolled greenhouse gas emissions from five of the largest U.S. power companies.

The decision in American Electric Power Co. v. Connecticut likely will turn on application of abstruse judge-made doctrines, such as standing, justiciability and the reach and displacement of federal common law. My purpose here is not to review the merits of applying these legal doctrines in American Electric Power Co. v. Connecticut. Rather, I offer the observation—not a prediction—that if, as appears likely, the Supreme Court rules that the complexity of greenhouse gas emission regulation is not suitable for adjudication by trial judges in a tort-based lawsuit, that same complexity might pose obstacles under a different legal doctrine as to whether particular instances of EPA regulation of greenhouse gas emissions exceed the agency’s discretion under the Clean Air Act.

Petitioner-utility companies in American Electric Power Co. v. Connecticut argued that nuisance lawsuits would require judges to adjudicate competing claims about appropriate global, national and industrywide greenhouse gas emission levels by making policy decisions and trade-offs that should be made by the political branches of government. The solicitor general characterized such a task as so complex that the Supreme Court “had never heard a case like this in 222 years.” Justice Antonin Scalia, in his colorful way, questioned that if states could bring a nuisance claim against utility companies, just as easily they could “sue every cow in the country or every house in the country” to inhibit their contributions to carbon emissions. Justice Elena Kagan questioned whether the complexity of the lawsuit isn’t “the paradigmatic work of agencies.” While the Supreme Court might find that trial courts should not wade into the thicket of greenhouse gas emissions regulation, the complexity of such regulation raises the question, to be litigated in future cases, whether the EPA has the necessary discretion under the Clean Air Act to resolve those same competing claims about appropriate global, national and industrywide greenhouse gas emission levels by making the types of policy decisions and trade-offs that might underlie its sector-by-sector greenhouse gas regulations.

The justices’ remarks during oral argument in American Electric Power Co. v. Connecticut about the complexity of greenhouse gas emissions regulation raises a distinct legal risk that certain proposed and future EPA global warming regulations will involve overt political compromises and economic trade-offs of global, national and industry interests that are beyond the institutional competence of the courts and could be found by a majority of the Supreme Court to exceed the discretion granted the EPA under the Clean Air Act.

Even though the Supreme Court affirmed by a 5-4 decision in Massachusetts v. EPA over Chief Justice John Roberts’ dissent that greenhouse gas emissions could be regulated under the Clean Air Act, that does not mean that all of the complex compromises and trade-offs that the EPA might need to make in crafting specific regulations of greenhouse gas emissions will be found by the Supreme Court to be within the agency’s discretion under the Clean Air Act. One can almost hear a justice’s future question as to whether the global, national and industry emission level compromises and trade-offs in a particular EPA global warming regulation are such complex matters that Congress should decide and that the Clean Air Act does not authorize the EPA to make.

Author

Mark L. Perlis is a partner in Dickstein Shapiro LLP’s energy practice. Reach him at perlism@dicksteinshapiro.com.

 

More Electric Light & Power Articles
Past EL&P Issues
Previous articlesmart-grid-evolution-of-dr-and-the-impact-of-ferc-745
Next articlePowering the Future of Energy Efficiency

No posts to display