On June 30th, 2011, the Human Impacts Institute attended the New York City Bar Association-hosted debate on the future of climate change litigation, a response to a recent decision by the Supreme Court in the case of Connecticut v. American Electric Power Co. (CT v. AEP).
On June 20, 2011, the Supreme Court of the United States made a long-awaited ruling in CT v. AEP, a public nuisance lawsuit. This form of civil suit can often be a useful tool for addressing issues not regulated by the federal government, such as environmental cases where pollution crosses state lines. In the CT v. AEP case, several states and land trusts claimed current and future injuries from global warming, specifically from power plant emissions.
The case was originally dismissed in the lower court on technical grounds, a decisionreversed by the Second Circuit Court of Appeals. The final 8-0 ruling by the Supreme Court represented a narrow affirmation of the original ruling. Specifically, Justice Ginsburg’s majority opinion held that because the Environmental Protection Agency(EPA) was already empowered to regulate greenhouse gases by the Clean Air Act and the Court’s 2007 decision in Massachusetts v. EPA, the matter was not appropriate for the courts to decide. Although this is seen as a loss to the plaintiffs (states and land trusts), the decision reinforces the EPA’s role in the regulation of greenhouse gases at a federal level in the United States.
Michael Gerrard, Director of the Center for Climate Change Law at Columbia Law School, moderated the event, with panelists in attendance, Mr. Peter Glaser and Mr. Peter Lehner.
Peter Glaser is an attorney specializing in Energy and Environmental Law, and a partner at Troutman Sanders, a Washington-based international law firm. His clients often include energy and utility companies. Mr. Glaser views the recent decision in CT v. AEP as reinforcing the notion that EPA’s regulatory authority over greenhouse gas emissions, supported by the Supreme Court decision in MA v. EPA, displaces the rights of plaintiffs to force the courts to regulate greenhouse gasses in specific cases, and that it is the political branches of government, not the judiciary, who should undertake the regulation of emissions.
Peter Lehner is the Executive Director of the Natural Resources Defense Council (NRDC). Mr. Lehner represented one of the Plaintiffs (New York State) before the Court of Appeal for the Second Circuit in CT v AEP. Mr. Lehner believes that in the absence of appropriate legislation compelling enforcement bodies such as the EPA to defend individuals’ interests on environmental health issues, the federal court system is the appropriate forum for addressing each individual’s grievance. Mr. Lehner strongly contends that the plaintiffs in CT v. AEP never did ask for a global response to climate change from the judges, but simply for the defendants to account for their actions.
This cases decision, giving the EPA (federal authority) precedence over the common law, public nuisance right-to-sue addressed a major issue related to climate change and its’ impacts. What is the most appropriate and effective approach to greenhouse gas regulation?
Observers argue that the proper place for such regulation is within comprehensive legislation at the federal level. Since no such legislation is in effect currently in the United States, action by the EPA (a federal agency) under the Clean Air Act has taken its place. Many also recognize the difficulty of passing comprehensive legislation under a conservative federal administration. As a result of these views, two litigation strategies were targeted, resulting in the MA v. EPA and CT v. AEP cases. Civil suits were seen as a last resort and the worst option for regulation as they would force many complex and technical decisions into the court systems. It was also problematic because, by their nature, the courts cannot be proactive and groups would have to present these cases to the courts for decisions to be made.
The recent CT v. AEP decision reiterates the EPA’s authority to regulate greenhouse gases. Most still believe the best hope for comprehensive and effective policy remains in federal legislation. Until a price is imposed on the carbon pollution itself, so that the polluter is made to pay, markets cannot be optimally fluid. The problem is that until comprehensive laws such national cap and trade schemes or carbon taxes, legal approaches to solving the issue will remain fragmented and uncoordinated. Instead, the EPA now is faced with the daunting and cumbersome task of regulating greenhouse gas emissions on a case-by-case basis.
Unfortunately, the near future does not hold much promise of federal action. The current Congress has shown limited interest in market-driven incentives or industrial penalties. This, in combination with the effects of the economic recession, have stalled action and sapped political will towards the strengthening of greenhouse gas legislation.
by Alex White and Marc Jourdan, Human Impacts Institute Environmental Leadership Interns