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Thursday, September 09, 2010

Courts - More on: "Kansas joins case to head off federal carbon regulation"

Supplementing yesterday's ILB entry on the amicus brief filed by the Indiana AG in Connecticut v. AEP, several other appeals are intertwined

Robert M. Stonestreet of Dinsmore & Shohl LLP writes in this comprehensive article dated Aug. 23, 2010 headed "Regulation by litigation: Fourth Circuit weighs in on nuisance suits involving air emissions", focusing on the decision in North Carolina v. Tennessee Valley Authority:

The Fourth Circuit now joins the ranks of other courts that have addressed, with differing results, the propriety of public nuisance suits targeting air emissions. In Connecticut v. American Electric Power Company, Inc., 582 F.3d 309 (2d. Cir. 2009), eight states, three private land trusts, and the City of New York filed suit in federal court in New York against six electricity companies alleging that emissions from the companies’ coal-fired power plants contribute to the “ongoing nuisance” of global warming. The plaintiffs mostly alleged future injuries if the emissions allegedly contributing to global warming were not reduced, such as increased health problems from heat waves and smog, coastal erosion from rising sea levels, and general disruption of ecosystems. The plaintiffs asked the court to set deadlines for future reductions in emissions of “greenhouse gases” - mostly carbon dioxide. The plaintiffs did not seek any monetary damages.

The district court dismissed the case as a “political question” requiring the “identification and balancing of economic, environmental, foreign policy, and national security interests” that are appropriately addressed by the legislative and executive branches of government. On appeal, the Second Circuit reversed and reinstated the claims. The court concluded that the claims did not present a “political question,” but rather each plaintiff had sufficiently alleged legal claims upon which courts may grant relief. The power companies petitioned the United States Supreme Court to review the decision in early August, 2010.

Lyle Denniston of SCOTUSblog posted this entry yesterday, Sept. 8th, headed "Major fight on airborne pollution: The state of North Carolina is pressing the Fourth Circuit Court to reconsider a ruling overturning a mandate for pollution controls on out-of-state power plants."

And on Sept. 8, Dina Fine Maron and Evan Lehman of the NY Times reported "Obama's Climate Image Blurs as He Nears Last Half of Presidential Term." A few quotes:

Questions about Obama's commitment to addressing emissions flared again last month, when the administration weighed in on the landmark climate case American Electric Power Co. v. Connecticut. The Department of Justice submitted a legal brief encouraging the Supreme Court to throw out a decision by the 2nd U.S. Circuit Court of Appeals that affirmed the right to sue a collection of major electric utilities for their contributions to global warming. * * *

The DOJ brief argued that if local lawsuits claiming nuisance were allowed to proceed, there could be legal chaos, with courts deciding these issues on a case-by-case basis, "which is just not the way the court is supposed to work," said Jeff Holmstead, an industry attorney and former EPA air chief during the George W. Bush administration.

Posted by Marcia Oddi on September 9, 2010 10:46 AM
Posted to Environment