The case dates to 2004, when eight state governments, the city of New York and three land trusts sued the Tennessee Valley Authority and five other utilities burning fossil fuels to generate electricity. The plaintiffs said the utilities' greenhouse emissions posed a "public nuisance" because they contributed to climate change. They asked the court to order the utilities to reduce emissions "by a specified percentage each year for at least a decade." Although they lost in district court, a two-judge panel of the 2nd Circuit ruled in their favor on Sept. 21, 2009. The administration weighed in on behalf of the TVA, a federal agency.
The Center agrees with Acting Solicitor General Neal Katyal, that the EPA was using its authority to regulate carbon dioxide under the Clean Air Act, an authority it won in a case decided in April 2007:
"The agency's actions since the 2nd Circuit ruling last year changed the situation, including fuel-efficiency standards, an EPA finding that carbon dioxide posed a danger and initial steps toward regulating emissions at new or rebuilt power plants. EPA has already begun taking actions to address carbon-dioxide emissions.(WashPost, 8/26/2010)
That regulatory approach is preferable to what would result if multiple district courts - acting without the benefit of even the most basic statutory guidance - could use common-law nuisance claims to sit as arbiters of scientific and technology-related disputes and de facto regulators of power plants and other sources of pollution."