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Wednesday, December 08, 2010

Greenhouse Gases, EPA & The Courts

UPDATE:  5:30 pm Friday court announcement--The U.S. Court of Appeals for the District of Columbia Circuit denied a motion to partially stay implementation of pending EPA greenhouse gas regulations. 

A federal appeals court ruling on whether to stay U.S. EPA greenhouse gas regulations could affect the Supreme Court's consideration of whether states can regulate emissions using common law.

The Supreme Court announced on December 6th that it would take up the common law case, American Electric Power v. Connecticut.* The case before the Supreme Court was prompted by the combined efforts of eight states, New York City, and several land trusts to require utilities that operate fossil fuel-fired electric power plants to reduce emissions. American Electric Power Co. Inc. and several other power companies responded that the Clean Air Act supplants the federal common law when it comes to greenhouse gas emissions. In 2009, the 2nd U.S. Circuit Court of Appeals ruled in favor of the states.The case will be argued in the spring, after the U.S. Circuit Court of Appeals for the District of Columbia decides whether to stay the four EPA regulations, parts of which are due to go into effect on January 2. A ruling on the stay request is due at any time.

The regulations are relevant to the Supreme Court's consideration of the case because it may reach its conclusion by ruling on whether efforts by EPA to regulate carbon emissions in recent years have effectively supplanted any federal common law that would give the states the right to claim that emissions are a "public nuisance."

The four rules under attack from industry groups are:

1) the "timing" rule that requires new controls of greenhouse gas emissions from stationary sources would be triggered on Jan. 2, 2011, the day that new motor vehicle standards go into effect;

2) the "tailoring" rule that interprets the Clean Air Act in such a way that only major polluters are required to obtain permits for greenhouse gas emissions;

3) the "endangerment" rule focusing on EPA's initial decision in which it held that greenhouse gases are harmful; and

4) the "tailpipe" rule, which adopts new standards for car and light-truck emissions.

The Obama administration wants the Supreme Court to send the case back to the appeals court. The administration want the appeals corut to decide "whether, in light of multiple actions that EPA has taken since the court of appeals issued its decision,  any other federal law claims have been displaced," such as whether comprehensive federal regulation pre-empted the common law nuisance action.  A stay might undercut the administration's argument.  If the rules are not stayed, the Obama administration's argument will be stronger, because it would telegraph that the existing regulations are here to stay. (NYT, 12/7/2010, American Constitution Society Blog, 12/6/2010, Wiki)
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* The Supreme Court granted certiorari* in the case of American Electric Power Co. v. Connecticut, a common law nuisance suit seeking an order compelling large electric utility companies to reduce their contributions to global climate change. At issue will be a variety of doctrines - such as standing and political question - that nominally originate from constitutional limitations on the role of the judicial branch, but that judges have, over the years, expanded well beyond the text and structure of the Constitution. AEP is the first climate change nuisance suit to reach the Supreme Court.

The Obama Administration intervened in support of certiorari, but on a more limited ground of implied preemption than industry had advocated. The Administration claims that the EPA has gotten busy implementing the Clean Air Act with respect to greenhouse gas emissions and that allowing federal common law nuisance claims to proceed would interfere with the regulatory initiative.

* A writ of certiorari means an order by a higher court directing a lower court to send the record in a given case for review. A minimum of four of the nine Justices are required to grant a writ of certiorari. The Supreme Court is generally careful to choose only cases over which the Court has jurisdiction and which the Court considers sufficiently important, such as cases involving deep constitutional questions, to merit the use of its limited resources.

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