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May-June 2011

Vol. 36, No. 3


Ecology: American Electric Power Co. v. Connecticut

Thirteen religious institutions (including the Maryknoll Office for Global Concerns), offices and organizations submitted an amicus brief in support of a six-state lawsuit seeking to cap greenhouse gas emissions from power plants. In a 10-year process, the defendants (American Electric Power Co., Cinergy Corp, Southern Co., Xcel Energy Inc., and the Tennessee Valley Authority) have kept the case from going to trial arguing that policy questions it implicates do not belong in court. In 2006 a three-judge panel of the Second U.S. Circuit Court of Appeals decided that the case did have merit. This decision set the stage for the Supreme Court to hear oral arguments on April 19 over whether states and private citizens could bring common law nuisance claims in order to regulate greenhouse gas emissions.

This office joined the Unitarian Universalist Association; the Shalom Center; the Province of the Congregation of the Missionary Sisters of the Immaculate Conception; the New Evangelical Partnership for the Common Good; the National Catholic Rural Life Conference; the Missionary Oblates of Mary Immaculate; the Jewish Reconstructionist Federation; Interfaith Power and Light; the General Synod of the United Church of Christ; the Franciscan Action Network; the Columban Center for Advocacy and Outreach; and Church World Service in submitting an amicus brief in support of the plaintiff-respondents (Connecticut, New York, California, Iowa, Rhode Island, Vermont, and the City of New York, collectively "Connecticut") and three private land trusts. The religious institutions argued in the brief that Supreme Court should not wait for other branches of government to address climate change, and emphatically urged the Court "to err on the side of prudence, to err on the side of action and justice, and to allow this lawsuit to proceed."

The main issue for the courts is whether a party can assert a federal common claim challenging a company's carbon dioxide emissions as a public nuisance, or whether such efforts to curb emissions should be the responsibility of the legislative process. In 2004 eight states and the City of New York (collectively "Connecticut") filed a suit which was dismissed before trial in a district court. The court held that the "political question" in this dispute about global warming would be better resolved by the legislature.

However, in 2009 the Second Circuit Court of Appeals held that courts are allowed to hear such cases and that such disputes are not restricted to resolution in the political arena. What is important to note about the Second Circuit Court's decision is that it came just after the Environmental Protection Agency's 2009 finding that greenhouse gas (GHG) emissions endanger human health, which gave the Environmental Protection Agency (EPA) the authority to regulate GHG emissions under the Clean Air Act.

Though the power companies had argued that the courts' authority was displaced by the EPA's new authority through this finding, the Second Circuit Court pointed out that the EPA's regulation only applied to cars and other mobile sources, not stationary sources like power plants. Therefore until the EPA actually starts regulating all sources of carbon dioxide, the Court could not really determine whether or not displacement had occurred.

The case sets a significant precedent essentially positing that the public nuisance of greenhouse gas pollution has a proper place in court until federal regulations are in place. Since the Second Circuit denied a motion to dismiss, the case was allowed to move forward. The motion to appeal this decision was made by the power companies – the largest emitters of greenhouse gases in the United States, collectively responsible for 25 percent of GHG emissions in the United States. The final decision (by June 30 at the latest) will depend on whether the Supreme Court feels that the judiciary can properly handle such claims, or whether the complexity, controversy, and volume of such cases are grounds to dismiss this initial suit.

According to sources like the Wall Street Journal, the New York Times and other major newspapers, the Supreme Court was deeply skeptical about allowing states to sue electric utilities to force cuts in greenhouse gas emissions from power plants. The eight justices who heard the case repeatedly drifted into questions about how a federal judge could go about deciding such a case. Justice Sonia Sotomayor recused herself because she had been involved in the case, but not the decision of the Second Court of Appeals. Without Sotomayor, it is possible for the court to reach a 4-4 tie. If that happens, the lawsuit will be allowed to proceed.

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