When EPA acts, Citizens Enforcement Suits (not Common Law Action) is the only remedy according to Supremes
(Posted by E. Camille Yancey, Staff Attorney, Ohio Environmental Council; and Karrie Pratt, Law Intern, Ohio Environmetal Council)
Monday, the Supreme Court, in an 8-0 decision written by Justice Ginsburg, held that EPA’s authority to regulate GHGs under the Clean Air Act preempts the plaintiffs’ federal common law nuisance claim. Connecticut, et al. v. American Electric Power Co., et al., Supreme Court Docket No. 10-174. Justice Sotomayor recused herself due to her participation in the Second Circuit decision.
The plaintiffs/respondents in this case are eight States, the city of New York, and three private land trusts. The defendants/petitioners are four private utilities and the Tennessee Valley Authority.
The issue before the Court was whether the plaintiffs can maintain federal common law nuisance claims against the carbon dioxide emitters, thus holding the defendants jointly and severally liable for global warming.
In 2007, the Supreme Court held that the Clean Air Act gives the EPA the authority to regulate emissions of carbon dioxide and other greenhouse gases after a finding that GHGs endanger human health. Massachusetts v. EPA, 549 U.S. 497. The EPA has since determined that there are dangerous results of high levels of greenhouse gas emissions including an increase in heat-related deaths; coastal inundation and erosion caused by melting icecaps and rising sea levels; more frequent and intense hurricanes, floods, and other extreme weather events that cause death and destroy infrastructure; drought due to reductions in mountain snowpack and shifting precipitation patterns; destruction of ecosystems supporting animals and plants; and potentially significant disruptions of food production. The plaintiffs claimed the defendants are the five largest emitters of carbon dioxide in the United States, and their collective annual emissions of 650 million tons constitute 25 percent of emissions from the domestic electric power sector, 10 percent of emissions from all domestic human activities and 2.5 percent of all anthropogenic emissions worldwide. The plaintiffs sought injunctive relief which the Court declined to grant. The Court explained that the Clean Air Act clearly provides a means to seek limits on emissions of carbon dioxide from domestic power plants. This is the same relief the plaintiffs sought by invoking federal common law.
The Court stated that there is no room for such a “parallel track,” and relief must remain in the hands of the EPA. The Court stressed that Congress delegated the decision of whether and how to regulate carbon dioxide emissions from power plants to the EPA— this delegation is what displaces federal common law. The Court further explained the difficult balance between the environmental benefit and the Nation’s energy and economic needs. The Clean Air Act explicitly entrusts such “complex balancing” to the EPA, who are more equipped to tackle such complex issues than the courts. The decision stated the EPA was better able to decide the issue because the EPA is an expert agency that has the ability undertake scientific studies, convene groups of experts for advice, issue rules under notice-and-comment procedures and seek the counsel of regulators in the States, whereas the federal district judges are confined by a record comprising the evidence the parties present. The Court’s refusal to grant the plaintiffs’ injunctive relief is not a total loss in the fight to curb GHG emissions. The decision strongly emphasizes the EPA’s role in regulating GHGs. It puts more pressure on the EPA to take action and implement regulations that better control emissions from power plants. The Court explicitly states the Act provides a means for “any person” to force emissions limits of carbon dioxide from domestic power plants through a private civil enforcement action in federal court if States (or EPA) fail to enforce emissions limits against a regulated source.
Although the Court held that seeking injunctive relief to set GHG emissions limits, was not proper, be sure to keep an eye out for the pending 9th Circuit appeal GHG case which will decide whether a case for monetary damages may be allowed. Native Village of Kivalina, et al. v. ExxonMobile Corp., No. cv-08-1138 (N.D. Cal.).