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United States Supreme Court Reverses Second Circuit Decision that Permitted States’ Lawsuits Over Greenhouse Gases

WASHINGTON, D.C. - (Mealey's) The U.S. Supreme Court on June 20 unanimously reversed a Second Circuit U.S. Court of Appeals ruling that allowed five states to pursue lawsuits under the Clean Air Act (CAA) that sought court-imposed limits on the greenhouse gas (GHG) emissions discharged by a number of energy company defendants (American Electric Power Company Inc., et al. v. State of Connecticut, et al., No. 10-174, U.S. Sup.).

The high court held that the CAA and the Environmental Protection Agency's actions under the act displace any federal common-law right to seek limits on GHG emissions because Congress delegated authority to the EPA to decide whether and how to regulate GHG emissions.  The high court also found that the EPA is better equipped to decide on GHG emissions rather than a federal judge.

The States of Connecticut, New York, California, Iowa, Rhode Island, Vermont, New Jersey and Wisconsin and The Open Space Institute, Open Space Conservancy Inc. and Audubon Society of New Hampshire filed two public nuisance suits in the U.S. District Court for the Southern District of New York against American Electric Power Co. Inc., the Tennessee Valley Authority (TVA), The Southern Co., Xcel Energy Inc. and Cinergy Corp., seeking to limit carbon dioxide emissions the companies discharged.  Judge Loretta A. Preska dismissed the suits on Sept. 15, 2005, finding that the actions raise issues that should be left to the legislative and executive branches of the government and not the courts.

The Second Circuit reviewed the ruling.  At the time, Supreme Court Justice Sonia Sotomayor was on the federal appeals court panel but was elevated to the high court before the appeals court reversed the ruling in 2008.  The companies petitioned the high court for certiorari in August 2010.  At that time, New Jersey and Wisconsin dropped out of the states' suit.

Justice Ruth Bader Ginsburg wrote the opinion for the court, and Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy, Stephen G. Breyer and Elena Kagan joined.  Justice Samuel A. Alito Jr. concurred in part with the opinion and concurred in the judgment.  Justice Clarence Thomas joined Justice Alito.

Justice Sotomayor did not take part in the Supreme Court's decision.

[Editor's Note:  Full coverage will be in the July issue of Mealey's Pollution Liability Report.  In the meantime, the order is available at Mealey's Online Research Service or by calling the Customer Support Department at 1-800-833-9844.  Document #08-110708-013Z.  For all of your legal news needs, please visit Mealey's Legal News & Litigation Reports.]

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