DOJ Brief Supports TVA Request that Supreme Court Vacate 2nd Circuit Reinstatement of Public Nuisance Greenhouse Gas Lawsuits

DOJ Brief Supports TVA Request that Supreme Court Vacate 2nd Circuit Reinstatement of Public Nuisance Greenhouse Gas Lawsuits

WASHINGTON, D.C. - (Mealey's) The federal government on Aug. 25 asked the U.S. Supreme Court to vacate a lower court decision to reinstate two lawsuits seeking to limit carbon dioxide emissions, arguing that new greenhouse gas regulations have displaced public nuisance cause of actions (American Electric Power Co. 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 and the City of New York filed suit in the U.S. District Court for the Southern District of New York in 2004, accusing six electric power companies of contributing to global warming and creating a public nuisance.  The Open Space Institute, Open Space Conservancy Inc. and the Audubon Society of New Hampshire filed suit in the District Court that year, alleging similar claims.

The District Court dismissed the suits in 2005.  But the Second Circuit U.S. Court of Appeals revived the suits on Sept. 21, 2009, holding that the plaintiffs' claims do not present nonjusticiable political questions.

Defendants American Electric Power Co. Inc., American Electric Power Service Corp., Cinergy Corp., Southern Co. and Xcel Energy Inc. filed a petition for writ of certiorari in the Supreme Court on Aug. 2.

The federal government filed a brief in support of the petitioners on behalf of defendant Tennessee Valley Authority.

The Second Circuit held that the plaintiffs' federal common-law actions for public nuisance had not been displaced by the Clean Air Act (CAA) because the EPA does not regulate carbon dioxide under the CAA, the federal government notes.

However, in the 11 months since the Second Circuit decision, the EPA has taken several affirmative steps to make carbon-dioxide emissions "subject to regulation" under the CAA as of Jan. 2, 2011.  "Thus, even assuming the court's decision was correct when it was issued, it is now clear, in light of intervening developments, that any federal common-law cause of action against petitioners and TVA for their emissions has been displaced," the federal government says.

In addition, even if jurisdiction exists under Article III of the U.S. Constitution, the plaintiffs' suits should be barred as "generalized grievances more appropriately addressed in the representative branches," the federal government says.

[Editor's Note:  Full coverage will be in the September issue of Mealey's Litigation Report: Pollution Liability.  In the meantime, the brief is available at http://www.mealeysonline.com/ or by calling the Customer Support Department at 1-800-833-9844.  Document #08-100902-001B.  For all of your legal news needs, please visit www.lexisnexis.com/mealeys.]

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For more information, e-mail editor Samantha Drake at samantha.drake@lexisnexis.com.

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