Global Climate Change Law Under Review
December, 2010
by Amy R. Paulus and Ilene M. Korey and Mark D. Paulson and Kathleen A. Johnson and Amber N. Oleson and Elizabeth Jozefowicz
The United States Supreme Court Will Hear Key Global Warming Case Against Utility Companies
The United States Supreme Court granted the petition for certiorari filed by various electric utility companies seeking a reversal of the Second Circuit's ruling that would allow states and private parties to pursue public nuisance claims under federal common law for a reduction in greenhouse gas emissions.
Justice Sotomayor decided to recuse herself from this matter. Prior to her Supreme Court nomination, she served on the Second Circuit panel that heard the case, although she did not participate in the Appellate Court's ruling. Justice Sotomayor's recusal could significantly impact how this case is resolved as there is now a possibility of a 4-4 deadlock among the remaining eight justices.
The Supreme Court will address the following legal issues: (1) whether states and private parties may seek emissions caps on utilities for their alleged contribution to global climate change; (2) whether courts are allowed to establish caps on carbon dioxide emission based on complaints from states and private parties under federal common law; and (3) whether a cause of action to cap greenhouse gas emissions can be implied under federal common law when the United States Environmental Protection Agency (the "EPA") has already been assigned federal responsibility for such regulation under the Clean Air Act.
Accordingly, the court will decide whether eight states - California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont and Wisconsin - and several land trusts can force utility companies to reduce carbon dioxide emissions from their plants by bringing a public nuisance claim under federal common law.
Opposing the states and land trusts, the utility companies assert that the EPA has the authority to regulate greenhouse gases, as the Clean Air Act displaces the federal common law with respect to their carbon emissions. The Obama administration also appears to support this position, as acting Solicitor General Neal Katyal urged the Supreme Court in August to vacate the Second Circuit's decision and remand the case to the Appellate Court in a brief filed on behalf of the Tennessee Valley Authority. According to the brief, the EPA's greenhouse gas regulations have supplanted the type of common-law claim at issue.
The Supreme Court will most likely hear arguments in March, with a decision expected by the end of June. A ruling in this case may be the most important environmental decision since the Supreme Court ruled that the EPA can regulate greenhouse gas emissions in Massachusetts v. Environmental Protection Agency, 549 U.S. 497, 511, 127 S. Ct. 1438, 167 L. Ed. 2d 248 (2007).
We will continue to monitor all developments and provide updates on this landmark climate change lawsuit. Please contact our Global Warming and Climate Change Liability Coverage Team if you have any questions via CM Partner Amy Paulus, apaulus@clausen.com, (312) 606-7848.
