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43 Trends 1 (2011-2012)

handle is hein.journals/trends43 and id is 1 raw text is: H 7 U 0 0 z 2 2 7 0 2 0 2 0 H U i.L4 which egtttes th Cit ofNew York, an several lan trst organiations sued the nation's yie largest fossil-fiuel-buring electric atiiy corm- ipanics to reduce thcir cmissions of greenhouse gases, arguig th2t hese emissions constitute pub ic nurisancc under federal cowmmon aw. The Suprem e Cout rejected this clai reasoning that the Clean Air Act (CAA), when coupled with the Environmenta Protection Agency's (EPA's) authority and the actionis EPA has taken iin the last two years to regulate greenhouse gas (GHG) emissions, displaces federal common law nuisance causes of actionl for injunctive action addressing climate change. roun toto ourt's dco The action in AEP commenced in 2004 in an entirely different judicial, administrative, and legislative landscape. In Connecticut v. AEP, a collection of states representing 77 million citizens and private conservation organizations sued the nation's five largest emitters of carbon dioxide in the Inited States under federal com- mon and state public nuisance law. Plaintiffs asked the couirt for injurnctive relief to cap defendants' emissions, develop a schedule for reducing defendants' emissions on a percentage basis over time, a ssess and measure available alternative energy resources, and reconcile its relief with U.S. foreign and domestic policy. The utility defendants argued that the politi- cal question doctrine, which holds that federal courts should not consider certain matters reserved for the representative branches, pre- yented federal courts fror hearing the plaintiffs' federal common law for puliec nuisance based on climate change. The U.S. istrict Court for the Southern District of New York agreed withi the defen- dants and dismissed the case as a nojustiible political question. The court concluded that it was impossible for it to wake the initial policy deter mation hat wust be wade by the elected branches before a non-elected court car properly adjudicate a global warming nuisa nce claim. It concluded that laintiffs' allegations were extraordinary, patently political and transcendently legislative. Connecticut v. AEP, 406 F. Supp. 265, 274 (S.D.N.Y. 2005). In 2009, the U.S. Court of Appeals for the Seco~nd Circuiat rev ersed1, finding cimate claims in tort 1law to be justiciable. The Second Circuit held that no aspect of the political question doetrine applied to enjoin judicial review. In particular, the circuit court found that cimate thre eecd b c o e3 C them Conectcutv. AP 52 Fd 09c(2dtr.I on De mb t - ,fer 210 . t-e S.SuemaleyCur anted Aercan Electr Power and the other utility defendants petition for certiorari on the issues of whether (1) the states anId other plain tiffs lac standing (2) federal law displaces the plantis' cims, ai (3) the cse aisces njus- ticiab e poitical qestions. Justice Sotoayor, who was a member of the Sccond Circuit psnel in the case below, recused herself. The Obama administration filed a brief on behalf of defendant Tennessee Valley uthorityon the same side as the utility defen- dants-arguing that the plaintiffs lack pruden- tial standing, and that federal law displaces the nee for common law causes of action for cli- mate change. In particular, the Solicitor General argued that various EPA activities displace the need tor federal common law causes of action and er the standards set in the Courts decisions in Middlesex County Sewerage Auth. v. Nut'1 Sea Clammers Ass'n and Milwvaukee v.Jllinois ral argument was held on April 19, 2011 During oral argument, none of the justices seri- ously questioned that climate change is occur- ring that human activity is paying a role in that dynamic, that the CAA bestows upon EPA the authority to regulate GHGs as ar 'pollutant nder Massachusett v EPA that at least the states possess both conistiutionai arid prudential standing, or that federal courts have authority consder cases concerning climate change Nonetheless, several Justices expressed skepticism about the propriety of using federal cor on law ir this context, including the more 'liberal' wing of the CourftJustices uth ader Ginsburg, Stephen Breyer, anR d lena Kagan For example, Justice reyer asked, if the court car set emission standards, why can't they also set carbon taxes, which are likely to be more effective Wht' the end~ of it? Jus~tice Kaganl iqie,this sounds like the paradigratic thing that administrative agencies do rather than courts. Justic~e Ginsburg remarked to the respondents' attorney: Congress set up the EPA to promulgate stanrdards for emissions, and ... the relief you're seeking seems to me to set up a district judge, who does not have the resources, the expertise, as a kind of super BPA. Justice Ginsburg's concern~ about implicit y designating district judges as a kind of super EPA proved a harbinger of the Court's final opinion. Writing for ar 8-0 majority of the Continuied on page 15 Septemb. .: er/October A2011 Volum 43, Nuber 1

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