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High court says emissions case a matter for EPA

States sought greenhouse gas cuts by utilities

By Adam Liptak
New York Times / June 21, 2011

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WASHINGTON — The Supreme Court yesterday unanimously rejected a lawsuit that had sought to force major electric utilities to reduce their greenhouse gas emissions without waiting for federal regulators to act.

The suit was brought by six states, New York City, and several land trusts. Its central contention was that carbon-dioxide emissions from power plants belonging to four private companies and the Tennessee Valley Authority amounted to a public nuisance. The suit asked a federal court in New York to order the defendants to reduce their emissions.

Justice Ruth Bader Ginsburg, writing for the court, said the plaintiffs were making their case in the wrong forum. Under the Clean Air Act, she wrote, the matter must be addressed by the Environmental Protection Agency rather than the courts.

The lawsuit was filed in 2004 against a different regulatory backdrop. In those days, the Bush administration argued that the Clean Air Act did not permit the agency to issue regulations addressing climate change, and that it would be unwise to do so in any event.

But in 2007, the Supreme Court ruled that the law did authorize federal regulation of greenhouse gas emissions, and that the agency was required to issue them unless it had a scientific basis for its refusal.

After that decision and the change in administrations, the agency has begun to issue greenhouse gas regulations, starting with rules covering automobiles. It is working on more, including one that would set limits on power plants that burn fossil fuels such as coal or natural gas.

It followed, Ginsburg wrote, that the agency rather than the courts should take the leading role in considering limits on power plant emissions, although the agency’s action or inaction would remain subject to judicial review.

Originally, eight states — California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont, and Wisconsin — filed the suit, but New Jersey and Wisconsin later dropped out.

The states and their allies asked the courts to protect them from what they called a public nuisance: the many unwanted consequences of global climate change caused by heat-trapping pollutants. The defendants, they said, were collectively responsible for 25 percent of all greenhouse gas emissions from domestic power plants and 10 percent of emissions from all human activity in the United States.

The private defendants in the suit are American Electric Power Co. of Ohio; Cinergy Co., now part of Duke Energy Corp. of North Carolina; Southern Co. Inc. of Georgia; and Xcel Energy Inc. of Minnesota.

Judge Loretta A. Preska of US District Court in Manhattan dismissed the suit, saying the “balancing of economic, environmental, foreign policy, and national security interests involved’’ was a task “consigned to the political branches, not the judiciary.’’ But her ruling was reversed more than three years later on appeal, when a two-judge panel of the Second US Circuit Court of Appeals, in New York, allowed the case to proceed.

The panel originally included Judge Sonia Sotomayor, although its decision was not issued until after she was elevated to the Supreme Court.

Sotomayor recused herself from the case when it reached the Supreme Court; that led to a 4-4 deadlock on the threshold issue of whether federal courts had the authority to hear the case at all.

The court did not disclose the justices’ votes on that point. Summarizing the decision from the bench yesterday, Ginsburg explained the court’s “standard practice’’ in such circumstances: “We affirm the court of appeals’ exercise of jurisdiction, but we issue no opinion on the point and our disposition of the question carries no weight as precedent.’’

Nonetheless, a passage in another part of the decision indicated concerns similar to those expressed by Preska.

“The expert agency is surely better equipped to do the job than individual district judges issuing ad hoc, case-by-case injunctions,’’ Ginsburg wrote. “Federal judges lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order.’’

The justices also took no position on the science of climate change.

“The court, we caution, endorses no particular view of the complicated issues related to carbon-dioxide emissions and climate change,’’ Ginsburg wrote in her decision in the case, American Electric Power v. Connecticut.