Mass. power-plant rules overturned?

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    Mass. power-plant rules overturned?

    On its "green" pages, the Globe should post an AP article by Mark Sherman describing a Supreme Court decision in American Electric Power v. Connecticut. [ High court blocks states' climate change lawsuit, available from WTOP in Washington, DC, at ] We must hope Adam Liptak will write about the decision in the NY Times--the only reporter for U.S. general news media with enough background and expertise to explore difficult issues the decision opens.

    The Supreme Court ruled that states, cities and environmental organizations lack powers to sue power-plant operators under common law to force reductions in greenhouse gas emissions, because the Clean Air Act assigns regulation of emissions to the federal Environmental Protection Agency. [Case no. 10-174, decided June 20, 2011, at ]

    Local interest in the case should be strong, because it was in Massachusetts v. Environmental Protection Agency that the Court ordered EPA to consider greenhouse gas emissions as air pollution, under the Clean Air Act. [Case no. 5–1120, 549 U.S. 497, decided April 2, 2007, at ]

    The Clean Air Act generally assigns regulation of power-plant emissions to EPA. However, Massachusetts, like several other states, enacted state laws and regulations that limit emissions more stringently than EPA regulations. Some states, including Massachusetts, also limit greenhouse gas emissions in addition to other pollutants. Have the state laws and regulations, such as those in Massachusetts, now been made invalid?

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    Re: Mass. power-plant rules overturned?

    Good fortune: Mr. Liptak wrote about the case for the NY Times. [ Justices say regulators, not courts, should set greenhouse-gas rules, June 20, 2011, at ] He did not, however, address the issues of how the Supreme Court decision might interact with state regulation of power-plant emissions, including greenhouse gases.

    As Mr. Liptak puts it, the plaintiffs who started the case "asked the courts to protect them from what they called a public nuisance." In legal terms, that makes it a "common-law case" as contrasted with one involving violation of a written law. The Court responded mostly to that aspect of the case, reviewing similar cases in federal courts.

    Only in one sentence did the Court mention state regulation, saying, "Legislative displacement of federal common law does not require the 'same sort of evidence of a clear and manifest [Congressional] purpose' demanded for preemption of state law." [citing Milwaukee v. Illinois, 451 U.S. 317, at Opinion, p. 9] One might suppose that the Court did not intend, in the absence of a case raising them, to hold positions on those questions.

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    Re: Mass. power-plant rules overturned?

    The Court didn't address Federal vs. State regulation because that question wasn't in front of them.

    Under a common-law public nuisance suit, the judge(s) are left to decide what an acceptable "public nuisance level" is (or isn't). i.e. "Is the issue what an "ordinary person" would consider to be a nuisance?"  If they had applied that in this case, the courts would have had to determine what amount of pollution release would be acceptable and what level wouldn't be to meet that standard. The standard could also end up at very different levels based on the area of jurisdiction of the particular courts.

    Their decision was that the legislative bodies have agreed that the EPA is in a better poistion to answer that question and have vested the EPA with the responsibility and authority to make that determination and that the legislative decision preempts judicial decisions (i.e. Federal law delegating that decision making over-rides common-law decision making).

    As far as your question on how that affects State laws, I don't see where it has any effect at all.  State laws aren't common-law, they're a deliberate act by the State level legislative body.  There may be future issues between acceptable levels of pollutants set by the EPA and those set by State regulatory agencies but that would be an issue of Federal vs. State power, not commmon-law.  That, as the court indicated in the last paragraph you quoted, would require a very different judicial standard be applied.

    If the court had ruled the other way however, it could have given the courts the green-light to over-ride State laws. It would have given common-law judgements (the decisions of individual judges) greater weight than rules set by regulatory agencies - Federal or State.