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High Court Hears Arguments Over States' Lawsuits Against Power Companies

WASHINGTON, D.C. - (Mealey's) The U.S. Supreme Court on April 19 heard oral arguments over whether it should uphold a Second Circuit ruling reinstating two lawsuits brought by eight states seeking to limit emissions from five power companies under the Clean Air Act (CAA) (American Electric Power Company Inc., et al. v. State of Connecticut, et al., No. 10-174, U.S. Sup.). 

In 2004, the States of Connecticut, New York, California, Iowa, New Jersey, Rhode Island, Vermont and Wisconsin sued American Electric Power Co. Inc., American Electric Power Service Corp., The Southern Co., Xcel Energy Inc. and Cinergy Corp. in the U.S. District Court for the Southern District of New York, and the Open Space Institute, Open Space Conservancy Inc. and the Audubon Society of New Hampshire filed a similar lawsuit.  Judge Loretta A. Preska dismissed the actions in September 2005 after finding that a ruling limiting the companies' emissions should be left to the legislative and executive branches of the government, not the courts.  The Second Circuit U.S. Court of Appeals reversed Judge Preska's ruling.  American Electric Power Co., American Electric Power Service Corp., Cinergy (merged into Duke Energy Corp.), Southern and Xcel filed a petition for writ of certiorari in the Supreme Court to review the Second Circuit's decision.   

Peter D. Keisler of Sidley Austin in Washington, who argued on behalf of the companies, initially said that the plaintiffs lacked standing to bring their claims under the CAA and that they lacked the elements of a state or federal nuisance claim.  

Acting Solicitor General Neal Kumar Kaytal, who argued for the Tennessee Valley Authority (TVA) in support of the companies, said the high court should apply the prudential standing doctrine and hold that the lawsuits are not fit for judicial resolution because the emissions limits sought by the states would not remedy the complaints of their citizens.  Specifically, Kaytal contended that although the plaintiffs' alleged injuries from the companies' emissions are concrete, they are too general.  In response to a question from Justice Samuel A. Alito Jr. about whether the plaintiffs' claims would still fail under prudential standing even if there was no CAA, Kaytal answered that they would.   

Kaytal further argued that the political question doctrine was an appropriate way to dismiss the lawsuits.  

New York Solicitor General Barbara D. Underwood, who argued for the states, asserted that the states' claims are part of their fundamental duty to protect their lands and citizens and that the nuisance claims at issue have been "around for hundreds of years" and "adopted by courts to cover new environmental threats." 

Justice Ruth Bader Ginsburg then asked Underwood if the remedies sought by the plaintiffs would make the District Court judge presiding over the case "a kind of super EPA," and Justice Samuel Alito and Chief Justice John G. Roberts Jr. asked how the judge would determine what are reasonable and cost-effective means to decide what levels of emissions are permissible.  Underwood answered that the decision could be based on expert testimony and available technology. 

Underwood also argued that the plaintiffs' claims were not displaced because the EPA has yet to take action to place limits on the carbon dioxide emissions of stationary sources. 

[Editor's Note:  Full coverage will be in the May issue of Mealey's Litigation Report: Pollution Liability.  In the meantime, the transcript is available at or by calling the Customer Support Department at 1-800-833-9844.  Document #08-110506-001T.  For all of your legal news needs, please visit] 

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