Europe: States seek reversal of GHG nuisance suit

The attorney general of Indiana was joined by 11 other states in asking the US Supreme Court to overturn a lower court's decision that would allow individuals to use common law to sue sources of greenhouse gas (GHG) emissions.


The attorneys general have asked the Supreme Court to overturn a ruling last year by the Second Circuit Court of Appeals in American Electric Power v. Connecticut. The lower court said individual states had standing under common law to sue companies over their GHG emissions.


But if the federal courts begin establishing emissions policy on a “piecemeal basis,” it could “confound the political branches' legislative and administrative processes,” Indiana Attorney General Gregory Zoeller wrote in a friend-of-the-court brief filed on 3 September.


States' environmental regulatory programs could be disrupted if the court establishes GHG limits for sources if the states do not regulate GHG emissions or would set more stringent GHG limits than the court would, Zoeller wrote.


“The theory of liability being advanced here has no limiting principle” the brief read. “It would permit federal courts to impose CO2 emission limits on any entity in the country, and one might reasonably expect that the major economic actors of each state, not to mention state government entities themselves, would be on a list of potential defendants.”


Using something as “nebulous as common law” to determine GHG emissions limits would “erode public confidence” in courts of law because they would be stepping into policy setting, Zoeller argued.


The brief calls on the court to dismiss the case. “The court needs to step in now to decide whether this case presents claims that a federal court may properly adjudicate. Waiting until after final judgment will be too late, regardless of outcome,” the brief stated.


The US solicitor general filed a similar brief last month, asking the court to vacate the lower court's decision because regulatory efforts by the Environmental Protection Agency (EPA) have displaced common law. Under the Clean Air Act, citizens have the opportunity to challenge environmental regulations. The administration was defending the Tennessee Valley Authority, which was one of the five utilities sued in the initial case.


But the administration did not ask the Supreme Court to overturn the lower court's decision. It requested that the case be remanded to the Second Circuit Court for reconsideration in light of EPA's regulatory developments. The states are asking the Supreme Court to review the case itself and reverse the lower court's ruling.