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U.S. High Court Agrees To Take Up Case Over Energy Companies' Emissions

WASHINGTON, D.C. -- (Mealey's) The nation's high court on Dec. 6 granted a petition for certiorari filed by five power companies seeking review of a Second Circuit U.S. Court of Appeals ruling reinstating two Clean Air Act (CAA) lawsuits brought by eight states seeking to limit the companies' carbon dioxide emissions (American Electric Power Company Inc., et al. v. State of Connecticut, et al., No. 10-174, U.S. Sup.).

The States of Connecticut, New York, California, Iowa, New Jersey, Rhode Island, Vermont and Wisconsin argued in opposition to the petition that the U.S. Supreme Court should not decide if they have standing to bring their claims and if the CAA displaces their claims even in the absence of any regulatory action by the U.S. Environmental Protection Agency.

In 2004, the states filed suit in the U.S. District Court for the Southern District of New York, alleging that six electric power companies were contributing to global warming and creating a public nuisance.  The Open Space Institute, Open Space Conservancy Inc. and Audubon Society of New Hampshire filed a second complaint in the same court involving similar allegations.  The defendants were American Electric Power Co. Inc., American Electric Power Service Corp., The Southern Co., the Tennessee Valley Authority, XCEL Energy Inc. and Cinergy Corp. 

Judge Loretta A. Preska dismissed the suits on Sept. 15, 2005, concluding that ordering carbon dioxide generators to limit their carbon dioxide emissions would have an impact on economic, environmental and foreign policy and national security interests and therefore should be left to the legislative and executive branches, not the courts.  The Second Circuit reversed Judge Preska's ruling on Sept. 21, 2009, after concluding that the plaintiffs' claims do not present nonjusticiable political questions.  The companies' petition for rehearing or rehearing en banc was denied by the appeals court on March 5. 

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.  The petitioners asserted in their petition that the Second Circuit erred in its decision because it allows federal common-law claims seeking to hold companies that emit carbon dioxide liable for the alleged consequences of global climate change and authorizes federal courts to impose prospective caps on their emissions.  Those caps, the petitioners said, would be based not on any statute or regulation but instead would depend on each court's own assessment of what is "reasonable" in light of its "weighing of the gravity of the harm against the utility of the conduct." 

Supreme Court Justice Sonia M. Sotomayor took no part in the consideration or decision of the petition.

[Editor's Note:  Full coverage will be in the January issue of Mealey's Litigation Report: Pollution Liability.  For all of your legal news needs, please visit]

For more information, call editor Shane Dilworth at 215-988-7725, or e-mail him at