Solicitor General Files Brief in Support of Utility Petition for Certiorari from Second Circuit Climate Change Common Law Nuisance Ruling

Solicitor General Files Brief in Support of Utility Petition for Certiorari from Second Circuit Climate Change Common Law Nuisance Ruling

   By Steven Jones, Partner, Marten Law PLLC

“In a brief filed last August, the Solicitor General has urged the Supreme Court to accept review of the Second Circuit's decision in Connecticut v. American Electric Power Co. (AEP),” writes Steven Jones. “In AEP, the Second Circuit allowed a nuisance case against five of the nation's largest utilities to proceed because no federal climate change laws ‘preempt the field.’ The defendants in the case include the Tennessee Valley Authority (TVA), which is both a federal agency and the operator of a number of coal-fired power plants. AEP was brought by eight states, three nonprofit land trusts, and the City of New York, seeking to hold the five named defendants ‘jointly and severally liable for ... global warming.’  American Electric Power and the other defendants (the Utilities) filed a petition for certiorari on August 2, maintaining that the States and other plaintiffs lacked standing to raise nuisance claims. The Utilities argued that certiorari was appropriate because the Clean Air Act directs that regulation of climate change emissions be undertaken by the EPA and also because climate change regulation presents a non-judicial political question.”

“The Obama Administration's brief, which was filed on behalf of TVA, joined in the request for certiorari. This position caught the plaintiffs in the case and some environmental groups off guard,” explains the author. “Based on the EPA's recent issuance of a number of climate change rules, many had expected the Solicitor General to sit this case out. Ironically, Acting Solicitor General Neal Kumar Katyal grounded his request for certiorari on EPA's new regulations, maintaining that the newly-finalized regulations on greenhouse gases have displaced the type of common-law claim that the Second Circuit had sanctioned. Katyal urged the Court to vacate the Second Circuit's decision and remand the case for further proceedings, this time taking into account the Administration's push to regulate greenhouse gases under the Clean Air Act.”

Steven Jones proceeds to first analyze the Second Circuit’s ruling in AEP and similar rulings in other circuits, and then examines the utilities’ petition for cert and the Solicitor General’s brief in support of cert.

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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.

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