The US Supreme court heard oral arguments yesterday in a lawsuit that could have major ramifications on efforts to curtail greenhouse gas emissions in the US.
American Electric Power Company Inc. v. Connecticut pits five major power companies and the federally run Tennessee Valley Authority (TVA) against a group of states that want to limit coal-fired power plant emissions.
The case originated in 2004, when the Bush administration refused to address climate change and even pollution spewed by the country’s most antiquated utilities. A group of Northeastern states, New York City, and some environmental groups sued the five biggest polluters, which together emitted 10% of US emissions that year: American Electric Power, Southern Company, Cinergy (now merged with Duke Energy), Xcel Energy, and the TVA.
The plaintiffs claimed the utilities were causing a public nuisance – since they were the cause of so much pollution they were harming the environment and peoples’ health.
The utilities argued the case should be dismissed because decisions about climate change should be dealt with by the political process, not the courts. The US District Court in Southern New York agreed, but that decision was reversed by an appeals court in 2009.
The utilities are now asking the Supreme Court to throw out the suit, which many expect them to do. The Obama administration has sided with the utilities because, it says, the EPA is regulating greenhouse gas emissions, making the case irrelevant.
But with Republicans bent on removing EPA’s right to do that, states and environmental groups want a Plan B.
If the EPA loses its right to regulate, or if regulations get too watered down, the right to sue utilities to cut their greenhouse gas emissions would be one of the few remaining tools.
Furthermore, EPA regulations coming into force this summer apply only to new pollution sources and to upgrades in power plants, not to existing power plants. Final regulations for existing power plants and other major polluters aren’t expected until May 2012.
But the Justices are clearly wary of wading into what is already a serious tug-of-war between the executive and legislative branches of the government.
"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. Do we ignore the fact that the EPA is there and that it is regulating in this area?" Justice Ruth Bader Ginsburg said.
Other Justices note the case would set a precedent for future lawsuits that could result in overlapping, defacto regulations on power plants.
"EPA has just taken some procedural steps but not actually done anything that limits the emissions of these sources. This case is the last resort if the federal government fails," explains David Doniger, policy director for the climate center at the Natural Resources Defense Council.
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