Earlier today the Supreme Court voted unanimously to block a lawsuit brought against five major power companies by six states, New York City, and several other land trusts. The plaintiffs sought to force the companies to limit their greenhouse gas emissions by categorizing the pollution they create as a public nuisance according to common law. However, the court ruled that it was not the duty of the court to set greenhouse gas emissions standards because that responsibility has previously been delegated to the Environmental Protection Agency. The EPA has not yet created regulations to control greenhouse gas emissions from power plants but plans to later this year. This case could be revisited if the plaintiffs (or other parties) are not satisfied with the regulations that the EPA will eventually set or if congress votes to revoke the EPA’s power to regulate such emissions.
The lawsuit originated in 2004, in a very different political and regulatory environment. At that time, Republican President George W. Bush and his administration was arguing that the Clean Air Act, which was originally passed in 1963, did not give the Environmental Protection Agency the right to regulate greenhouse gas emissions. Eight states were originally involved in the case: California, Connecticut, Iowa, New Jersey, Rhode Island, Vermont, and Wisconsin. New Jersey and Wisconsin dropped out of the lawsuit earlier this year after electing republican governors. Their targets were five of the biggest greenhouse gas emitters in the country: the Tennessee Valley Authority and four members of the Edison Electric Institute (American Electric Power, Southern, Xcel Energy, and Duke Energy). The plaintiffs in the case asserted that the defendants collectively accounted for one quarter of all greenhouse gas emissions from domestic power plants and for 10% of total greenhouse gas emissions for the United States.
Because former president George W. Bush was actively attempting to strip the EPA’s power to regulate greenhouse gas emissions in 2004 when the lawsuit was originally filed, the states felt it was necessary to find another path to regulate them. The plaintiffs ultimately invoked traditional federal common law which gives state governments the power to intervene when something is creating a public nuisance. In their eyes, pollution was a public nuisance.
Judge Loretta A. Preska, a judge for the Federal District Court in Manhattan, originally dismissed the suit for reasons similar to those cited by the Supreme Court earlier today. She believed that the task of regulating greenhouse gas emissions was “consigned to the political branches, not the judiciary.” Preska’s ruling was later reversed on appeal by the United States Court of Appeals for the Second Circuit. Ultimately the case was brought to the Supreme Court, but the political landscape had drastically changed between 2004 and now.
One of those changes resulted from the Supreme Court’s 2007 decision in the case of Massachusetts versus EPA. In a 5-4 decision the court ruled that the Clean Air Act did give the power to regulate greenhouse gas emissions to the EPA. George W. Bush’s attempt to take this responsibility away was thus unsuccessful. The precedent set by the decision made in that case all but determined the decision handed down by the court today. Justice Ruth Bader Ginsburg wrote the decision on behalf of the court and declared that “The critical point is that Congress delegated to EPA the decision whether and how to regulate carbon dioxide emissions from power plants the delegation is what displaces federal common law.”
Clearly, the decision handed down today has upset many environmentalists. However, just as many are partially relieved that this case did not prompt the court to revisit the decision made in 2007 in the Massachusetts v EPA case. Going back to the days where the EPA was deemed powerless to regulate power plant emissions would have been a step backwards in their eyes. However, when the EPA will set standards is yet to be seen. The Obama administration assures that limits will be set soon, but with numerous bills aimed at crippling the EPA circling around congress, environmentalists know that the issue is far from resolved.
Click here to read the court’s full ruling.
Photo credit: whitehouse.gov/our-government/judicial-branch