The only thing worse than the Executive Branch replacing Congress in the setting of federal economic, environmental and energy policy would be the federal courts assuming that role. A case before the U.S. Supreme Court will determine whether the judiciary gains that authority.

The Supreme Court hears oral arguments Tuesday, April 19, in American Electric Power Company Inc. v. Connecticut, et al., the suit by several states and environmental groups against five electric utilities for creating a public nuisance by contributing to global warming. (Docket, questions presented)

If the Supreme Court upholds the Second Circuit Court of Appeal’s ruling against the utilities – which included the court setting emission limits as a remedy – the judicial branch will reaffirm its role as a super-legislature, determining political questions that Congress chooses not to address, and activist state attorneys general will be elevated yet again in the U.S. system of government. Speculative shakedown suits like Kivalina v. ExxonMobil would multiply, and energy costs would skyrocket.

The suit began with ueber-activist Connecticut Attorney General Richard Blumenthal, now U.S. Senator, and included state governments of California, Connecticut, Iowa, Rhode Island and Vermont, as well as New York City.  Named in the lawsuit are American Electric Power Co., Cinergy Corp., Southern Co., the Tennessee Valley Authority and Xcel Energy Inc. New Jersey and Wisconsin have dropped out of the lawsuit since the dispute started in 2004. Three land trusts, the Audubon Society of New Hampshire, Open Space Institute and Open Space Conservancy, also are suing the utilities. Justice Sonia Sotomayor is recused because she heard the case at the appellate level. The Scotusblog entry has the rulings and briefs.

The National Association of Manufacturers has long been involved in the litigation in support of our members. On Feb. 7, 2011, we joined the American Chemistry Council, the American Coatings Association, the Property Casualty Association of America and the Public Nuisance Fairness Coalition in filing an amicus brief in support of the power companies.  (See NAM’s Manufacturing Law Center entries.) The brief (available here) was written by Gardere Wynne Sewell LLP with Richard O. Faulk being the counsel of record. It concludes:

Faced with a planetary controversy, this Court should consider whether the judiciary has the resources and tools to investigate, evaluate, and fairly resolve this action. Amici urge the Court to consider the unique role of the judiciary in our tripartite system of government, and to decide that the standards and rules necessary to resolve this controversy can be developed justly and reliably only outside judiciary’s limited realm. The limits of judicial competency lead to the conclusion that forbearance is the only response that is consistent with the recognized boundaries of federal jurisdiction.

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