The U.S. Supreme Court this morning announced it would hear American Electric Power v. Connecticut, an appeal of the U.S. Second Circuit Court of Appeals’s ruling that states and environmental groups could sue under federal public nuisance law to force electric utilities to reduce greenhouse gas emissions. The court’s order granting cert is here.
Justice Sotomayor, who as a member of the Second Circuit ruled with the states, will recuse herself. (In this case, “ruled with the states” means ruled with the ambitious state attorneys general.)
The appellate court’s decision was an egregious intrusion of the judicial system into the policymaking role of government, which appropriately belongs with Congress. The National Association of Manufacturers had filed an amicus brief supporting Supreme Court review — available here — and our NAM Manufacturing Law Center entry summarizes:
The Supreme Court will review a very troubling decision by the U.S. Court of Appeals for the 2nd Circuit that allows 8 states to sue 6 major electric utility companies under a public nuisance theory. The theory is that each state is adversely affected by climate change caused in part by the utilities’ electricity-generating plants, and the courts should impose emissions limits.
The NAM and other business groups filed an amicus brief in the Supreme Court on Sept. 1 urging that court to review the case. We argued that only the political branches of government are equipped to resolve the complex and dynamic issues relating to climate change regulation, that the plaintiffs’ legal claims exceed the boundaries of public nuisance litigation, and that judges and juries are not empowered or competent to exercise extraordinary regulatory powers without clear boundaries and guiding principles.
Our brief argued that this case is far from the “ordinary tort suit” that the lower court thought it was. Instead, it is quite extraordinary, and the judiciary “has no experience dealing with public nuisance litigation created by a global phenomenon resulting from the release of greenhouse gases by millions, if not billions, of sources (including natural events) worldwide — very few of which are subject to the jurisdiction of American courts or under the control of these defendants.” It is inappropriate for courts to entertain standardless public nuisance litigation in an area that should be addressed by the political branches of government.
Click here for a summary of the Second Circuit’s decision and the NAM brief in that court.
The Supreme Court’s decision to review this case was announced on Dec. 6, 2010.
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