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Can the Roberts Court Stay Out of Politics?

Daily Journal

This session, the U.S. Supreme Court will decide whether to accept for review its first climate change case since its groundbreaking decision in Massachusetts v. EPA, 549 U.S. 497 (2007). Five power companies have petitioned for certiorari from the judgment in Conn. v. Am. Elec. Power Co., 582 F.3d 309 (2d Cir. 2009), vacating and remanding the district court's dismissal of plaintiffs' federal common law suit seeking abatement of greenhouse gas emissions from power companies' coal-fired electricity-generating facilities on the grounds that the claim presents a non-justiciable political question.

Plaintiffs, consisting of eight states, New York City and three land trusts, allege that petitioners' and defendant's, Tennessee Valley Authority, coal-fired power plants contribute to the public nuisance of global warming, which are causing and will cause future harms to plaintiffs such as lost coastal property, flooding, reduced water supply, lost aesthetic value, reduced habitat value and costs borne by addressing such impacts. Petitioners urge the Court to find that plaintiffs' federal common law public nuisance claim presents a non-justiciable political question. Plaintiffs have until Nov. 3, 2010 to file a brief in response.

Petitioners have requested the Court's review of two additional issues addressed in the 2nd U.S. Circuit Court of Appeals' opinion: as a threshold matter, whether plaintiffs have satisfied Article III standing requirements, and on the merits, whether the Environmental Protection Agency's rulemaking actions addressing greenhouse gas emissions in the intervening months since the 2nd Circuit's decision demonstrate that the Clean Air Act displaces plaintiffs' federal common law claims. Several similar common law public nuisance claims for contributions to global climate change are winding their way through the federal courts. Petitioners note that each of the four district courts that have ruled to date have held the claims present non-justiciable political questions.

Petitioners and most of the amicus briefs argue that the issues raised in Conn. v. Am. Elec. Power and the relief sought, a cap on defendants' 20 electricity-generating plants' carbon dioxide emissions over a 10-year period, would not be governed by "judicially discoverable and manageable standards" or would require "an initial policy determination of a kind clearly for non-judicial discretion." Because of the global nature of climate change (its origin, its effects, and its solutions) the proper forum for addressing greenhouse gas emission reductions is the political branches, not the judiciary.

In Mass. v. EPA, which the Court found justiciable, plaintiffs challenged EPA's regulatory action to deny plaintiffs' rulemaking petition to regulate light-duty vehicle greenhouse gas emissions under a statutory standard set by Congress. Unlike Mass. v. EPA, plaintiffs' federal common law claim cannot refer to such a statutory standard; nonetheless, the technical expertise and policy considerations that the Court has recognized as necessary in the promulgation of greenhouse gas regulation remain. Absent a statutory touchstone, petitioners argue that the Court lacks the necessary tools to adjudicate plaintiffs' claim. The matter is therefore appropriately left to the political branches, which are equipped with and can marshal the resources to address global climate change policy and greenhouse gas emissions reduction strategy.

Petitioners also challenge plaintiffs' Article III standing, alleging that they have failed to demonstrate that their injuries are fairly traceable to the defendants' actions and their injuries are redressable by relief against defendants. See Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). Petitioners note that, according to plaintiffs, global warming is the result of greenhouse gas emissions from billions of independent sources over hundreds of years. Thus, plaintiffs cannot single out defendants' carbon dioxide emissions from that of innumerable other third parties as the cause of climate change and plaintiffs' specific injuries. If plaintiffs cannot trace their harm to defendants' actions, then reducing carbon dioxide emissions from defendants' power plants cannot redress plaintiffs' injuries. Petitioners distinguish Mass. v. EPA, in which the Court found standing, because Congress had provided a statutory cause of action under which plaintiffs were challenging a governmental regulatory decision. In the case at bar, petitioners argue that plaintiffs have no such "statutory standing."

Petitioners also challenge the 2nd Circuit's holding that plaintiffs' federal common law actions for public nuisance have not been displaced by the Clean Air Act. As Tennessee Valley Authority argues in its brief, even if the court was right at the time of its judgment, EPA's actions since that time provide for comprehensive regulation of greenhouse gas emissions under the Clean Air Act, thus displacing federal common law in the area of global warming regulation.

As the 2nd Circuit observed, federal common law is "subject to the paramount authority of Congress," which means that a ""previously available federal common-law action" will be "displaced" whenever a "scheme established by Congress addresses the problem." See City of Milwaukee v. Illinois, 451 U.S. 304 (1981). The court reasoned that although EPA had published proposed endangerment and cause or contribute findings, EPA's final action could be a finding against either endangerment or cause or contribute. Further, even if EPA were to adopt the endangerment and cause or contribute findings, which would result in regulation of carbon dioxide emissions from non-stationary sources, EPA would have to take additional action to regulate greenhouse gas emissions from stationary sources, including making a finding that greenhouse gases are "air pollutants" whose existence in the "ambient air" is the result of "numerous or diverse mobile or stationary sources." The court held that, until EPA completes the rulemaking process, the Clean Air Act does not displace federal common law with regard to carbon dioxide emissions from stationary sources, such as defendants' coal-fired power plants.

Since the 2nd Circuit's judgment and the petition for certiorari was filed, EPA has taken several significant actions regulating greenhouse gas emissions, including those from stationary sources. EPA's recent greenhouse gas emissions regulations include: Finalizing endangerment and cause or contribute findings; finding greenhouse gases to be pollutants subject to regulation under the Clean Air Act; and adopting regulations requiring prevention of significant deterioration permits for any facility already subject to permitting requirements for other pollutants, and facilities undertaking a modification that will increase greenhouse gas emissions by more than 75,000 tons CO2e/year. After the petition was filed, EPA also published draft rules for implementing new permitting requirements under its prevention of significant deterioration program.

Based on these recent regulatory actions, petitioners argue that the Clean Air Act is a "comprehensive" statutory program fully occupying the field of greenhouse gas emission regulation for stationary sources. Although EPA's regulations do not include caps on emissions, the relief sought by plaintiffs, "the question is whether the field has been occupied, not whether it has been occupied in a particular manner."

If the Court issues a non-justiciable political question ruling or denies plaintiffs' Article III standing, all future federal common law claims involving climate change and greenhouse gas emissions will be foreclosed. Certainly, federal common law claims of the public nuisance of global climate change to achieve reductions in greenhouse gas emissions on a case-by-case basis - and subject to the vagaries of the judiciary - are not the ideal instruments with which to forge a national climate change policy.

The national debate on global climate change and energy policy is all but settled. After the mid-term elections, Congress may adopt legislation that, for example, adopts a climate change policy delaying EPA's regulation of greenhouse gas emissions or removes altogether EPA's authority to regulate greenhouse gas emissions under the Clean Air Act. Given the state of flux of national climate change policy and the uncertainty of the future of greenhouse gas emissions regulation, now is not the time to shutter federal common law's potential to address issues of climate change.

If, the Clean Air Act fully occupies the field of greenhouse gas regulation then federal courts will not be clogged with endless plaintiffs seeking incalculable redress from indeterminable defendants. However, future congressional action could change the field entirely, in which case redress under federal common law should be left as an option to abate the public nuisance of global climate change. Of course, Congress may by statute bar such federal common law suits, thus achieving displacement.

The Court has an opportunity to balance recognition of the political nature of the issues raised by plaintiffs without forever barring federal common law nuisance claims addressing climate change - the political branches have already taken action to address these very issues and the Court can remand to the 2d Circuit to determine the issue of displacement. In an uncertain political climate, will the Court be guided by principles of judicial restraint?

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