Legally Green: Get your gases out of my state!!

April 27, 2011

Earth(Editor’s Note: With both Earth Day and Arbor Day falling within the month of April, we’ll be looking at important environmental-related laws and cases throughout the month in an effort to evaluate the current state of environmental law in the U.S.)

To view the first installment of the series on Massachusetts v. EPA, click here.
To view the second installment of the series on the Yucca Mountain Nuclear Repository, click here.
To view the third installment of the series on the 1872 Mining Act, click here.

To bookend the month, we’ll be looking at greenhouse gas emissions again.

This time, it’s about a case that the Supreme Court just heard oral arguments on, and will release a decision by June.

The case, American Electric Power Company v. Connecticut, is a suit by Connecticut and several other states (plus New York City) against the five biggest polluters in the nation (all power companies).

The case originally started in 2004 when the Bush Administration made it clear that it had no intention to take action on greenhouse gas emissions, and the states took action themselves.

The lawsuit was dismissed in October 2005 in federal trial court, holding that the issue was a non-judiciable political question.

In 2009, however, the court of appeals reversed and found that the issue was judiciable, and that the states had standing; the power companies appealed.

The Supreme Court granted certiorari, and along the way, the federal government joined the power companies, much to the outrage of environmentalists.

The states are suing on a federal common-law public nuisance à la Georgia v. Tennessee Copper.

That case was about a smelting facility in Tennessee that was sending poisonous fumes into Georgia.

Georgia prevailed in that case, and was able to get an injunction issued against the facility until research could be done to reduce the emissions.

However, for several reasons, the states are probably going to lose this suit.

First, while there are some similarities between Tennessee Copper and AEP, there are more differences.

SmokestacksBoth the source of the pollution and the pollution itself in Tennessee Copper were definite and easily traceable.

This is not the case here.

With greenhouse gas emissions, there’s no way to trace exactly which particles came from where.  In addition, the sources are innumerable.

By the states’ own admission, the five largest contributors only account for 10% of total U.S. emissions.

While that’s a relatively large amount, an injunction against them wouldn’t remedy the states’ alleged damages (the harm from global warming).

Furthermore, Tennessee Copper was decided in 1907, at time when no federal environmental regulations existed, and industrial infrastructure was in its infancy.

At the time, it may have been practicable for the courts to be environmental regulators since there were fewer actors to regulate, and the federal government wasn’t doing it.

Now, the federal government has enacted regulation.

Even if that regulation has not preempted or displaced this kind of common law environmental claim, contrary to what the Justices seemed to suggest during oral arguments, courts are simply not equipped to handle the burden of regulation.

If the Court were to take the same approach as it did in Tennessee Copper, as the states argue it should, they would be responsible for making The Supreme Court in Washingtonpolicy decisions about acceptable emission levels that should be left to the Executive or Congress.

The Justices seemed to grimace at this possibility during oral arguments, and rightly so.

The EPA is designed to handle complex environmental regulation and is the legally responsible to regulate.

The courts are not.

While it is frustrating to environmentalists for the states to lose this suit, legally, it makes sense.

Both should be putting their energy into making regulatory changes through the EPA, not the courts.