Marten Law: Republican Lawmakers Join Obama Administration in Urging Supreme Court to Overrule GHG Nuisance Case

Marten Law: Republican Lawmakers Join Obama Administration in Urging Supreme Court to Overrule GHG Nuisance Case

   By Steven Jones, Partner, Marten Law PLLC

“Proving once again that politics makes for strange bedfellows, three prominent Republican lawmakers who have opposed EPA greenhouse gas regulation have joined the Obama Administration in urging the U.S. Supreme Court to overturn a landmark appellate ruling allowing environmental plaintiffs to sue sources of greenhouse gases (GHGs) in tort,” writes Steven Jones. “In American Electric Power v. Connecticut (AEP), an amicus brief filed on behalf of Representative Fred Upton (R-MI), chairman of the House Energy and Commerce Committee, Representative Ed Whitfield (R-KY), who heads the Subcommittee on Energy and Power, and Senator James Inhofe (R-OK), ranking member of the Senate Environment and Public Works Committee, argues that public nuisance claims on climate change issues should be rejected by the Supreme Court because they present non-justiciable political questions.”

“The AEP lawsuits (two consolidated actions) were originally brought by eight states, the City of New York, the Open Space Institute, the Open Space Conservancy, and the Audubon Society of New Hampshire,” explains the author. “The plaintiffs sought an injunction curbing the carbon dioxide emissions of six major power producers, who they claimed were the ‘five largest emitters of carbon dioxide in the United States and among the largest in the world.’ Part of the plaintiffs' nuisance claim rested on their assertion that the defendants had ‘practical, feasible and economically viable options for reducing carbon dioxide emissions without significantly increasing the cost of electricity.’ District Court Judge Loretta A. Preska dismissed both lawsuits on the grounds that the cases raised non-justiciable political questions.”

“After taking more than three years to review Judge Preska's decision, the Second Circuit concluded: (1) that the case did not present non-justiciable political questions; (2) that federal common law on nuisance governs the plaintiffs' claims and that the plaintiffs had stated claims under the federal common law; and (3) that the plaintiffs' claims were not preempted by either EPA regulation or Congressional action,” Jones reports. “In a brief filed back in August, then acting Solicitor General Neal Kumar Katyal joined in the petitioners' request for certiorari, maintaining that newly-finalized regulations on greenhouse gases issued by the EPA have displaced the type of common-law claim that the Second Circuit had sanctioned.”

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Steven Jones, a partner with Marten Law PLLC, is the chair of the firm's litigation department. He has handled complex environmental and land use litigation for both public and private clients for 15 years. Steve has particular expertise in litigation arising under CERCLA, the Clean Water Act, the Federal Torts Claim Act and representing clients in litigation involving climate change, solid waste and nuisance issues. He also has extensive experience litigating land use issues under both SEPA and Washington's Growth Management Act. Steve has handled cases before all levels of the state and federal courts, along with administrative litigation before Washington's Pollution Control Hearings Board, the Growth Management Hearings Boards and Washington's Utilities and Transportation Commission. Steve also writes and speaks frequently on environmental and land use issues and has contributed chapters to both the AWB Environmental Compliance Handbook and WSBA Real Property Deskbook. He is the editor of the ABA's Superfund and NRD Litigation Committee Newsletter.

Related Resources:

Emerging Issues Analysis on the LexisNexis Environmental Law & Climate Change Community –

Marten Law: Proposed Legislation Seeking to Block EPA Greenhouse Gas Regulation Picks Up Speed.

Marten Law: Solicitor General Sides With Utilities, Asking Supreme Court to Block Common Law Climate Change Lawsuit.

Jenner & Block: Federal Appeals Court -- Greenhouse Gas Emitters Can Be Subject to Federal Common Law Nuisance Liability.

Marten Law Group: Second Circuit Allows Federal Nuisance Claims for Global Warming to Proceed.

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Am. Elec. Power Co. v. Connecticut, 131 S. Ct. 813 (U.S. 2010) (Petition for writ of certiorari granted).

Connecticut v. Am. Elec. Power Co., 582 F.3d 309 (2d Cir. N.Y. 2009) (Second Circuit opinion).

Conn. v. Am. Elec. Power Co., 406 F. Supp. 2d 265 (S.D.N.Y. 2005) (District Court decision).

Brief Amici Curiae of Representative Fred Upton, Representative Ed Whitfield, and Senator James M. Inhofe in Support of Petitioners.

Brief for the Tennessee Valley Authority in Support of Petitioners, Acting Solicitor General Neal Kumar Katyal.

All briefs filed in the United States Supreme Court in Am. Elec. Power Co. v. Connecticut, 131 S. Ct. 813.

Beginning Official Recognition of the Phenomenon of Global Warming, 2-1A Treatise on Environmental Law § 1A.02.

The Preemption Puzzle: What Is the Effect of Comprehensive Federal and State Regulatory Controls on Common-Law Private Nuisance?, 9-64 Powell on Real Property § 64.06.

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