"We feel stabbed in the back," Pawa said. "This was really a dastardly move by an administration that said it was a friend of the environment. With friends like this, who needs enemies?"
Plaintiffs' attorneys are shocked by the Obama administration's decision to side with the wrong people on a case known as AEP vs. Connecticut seeking to apply the common law of nuisance to polluters.
- The Case
At common law, a nuisance is exactly what it sounds like. For example, California's legislature declared in 1872 that a nuisance is "anything which is injurious to health, or indecent or offensive to the senses, or an obstruction to the free use of property...." For years, creative lawyers have used nuisance law to sue airports (auditory nuisance aka noise pollution), chicken farms (olfactory nuisance aka yecch factor), developers of leaky tract homes (indoor air quality nuisance aka mold) and the like.
In AEP v. Connecticut, the 2d U.S. Circuit Court of Appeals sided with a coalition of states, environmental groups, and New York City. That decision held that the plaintiffs could proceed with a lawsuit that seeks to force several of the nation's largest coal-fired utilities to reduce their greenhouse gas emissions. Similar cases are pending before the 5th Circuit and 9th Circuit. The cases would effectively give private rights of action to anyone harmed by greenhouse gases -- a number certain to increase as climate change gets worse.
The private utility AEP defendants have petitioned the United States Supreme Court for certiorari. The Tennessee Valley Authority is also a defendant.
- The Choice
The Obama administration had three choices: side with the plaintiffs, do nothing, or side with the defendants. An attorney representing plaintiffs in the case had expected the White House to stay out of the matter. During a meeting with more than 30 administration lawyers at the solicitor general's office on June 24, it seemed they had "a lot of friends in the room," he said. And as late as August 19, Legal Planet asked "What will Obama do about Connecticut vs AEP?"
why hasn’t the Tennessee Valley Authority joined the rest of the utilities in asking the Supreme Court to grant certiorari in Connecticut v. AEP, the federal common law public nuisance case concerning greenhouse gas emissions?
To me, it seems that the answer is obvious. The Obama Administration wants comprehensive climate change legislation, the chances of which are profoundly smaller this session than a snowball in hell. If the Second Circuit’s decision allowing the suit to go forward is either upheld by the Supremes or (more likely) the high court doesn’t grant cert, then the only way to get rid of the suit is for Congress to displace it. And the only way for Congress to displace it is to pass legislation. As is the case with EPA authority to regulate carbon, this puts more bargaining power on the side that wants regulation.
Put another way, if the Obama Administration decides to enter the suit on behalf of the utilities, it would put the lie to its desire to get climate legislation.
Umm....yeah.
- The Decision
The Obama administration filed a brief (pdf; 41 fascinating pages of legalese) asking the Supreme Court to throw out the Second Circuit's decision, siding with the utilities.
The rationale appears to be federal supremacy: federal rules should be enforced by federal agencies – not through a patchwork of state-level decisions. The administration seems to believe that EPA action is sufficient. The Wall Street Journal reports: "EPA has already begun taking actions to address carbon-dioxide emissions," a brief filed by Acting Solicitor General Neal Katyal says. "That regulatory approach is preferable to what would result if multiple district courts — acting without the benefit of even the most basic statutory guidance — could use common-law nuisance claims to sit as arbiters of scientific and technology-related disputes and de facto regulators of power plants and other sources of pollution."
Reaction from Legal Planet: Obama sides with the polluters.
Note that the SG (Solicitor General) didn’t have to take a position on this case. This represents the administration going above and beyond the call of duty to undermine the chances of a sensible energy policy. Yes, a comprehensive statute would be better. And you know what? It ain’t going to happen.
A NRDC spokesperson is appalled. "This reads as if it were cut and pasted from the Bush administration's briefing in Massachusetts," said former Sierra Club chief counsel David Bookbinder.
If this conservative Supreme Court decides to hear the case, expect private nuisance suits to be barred.
While the assertion of federal supremacy is an important legal principle, the desire to avoid the nuisance of climate change should trump that. The administration appears to be putting far too much trust in the EPA to handle all regulation of greenhouse gases, even as states move forward with innovative plans and even as private lawyers would like to assist.
Full disclosure: my practice involves some nuisance cases, although none related to climate.