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Wednesday, September 08, 2010

Courts - "Kansas joins case to head off federal carbon regulation"

This lengthy story appeared in the Sunday, Sept. 5, 2010 edition of the Wichita Kansas Eagle. Some quotes:

Attorney General Steve Six has joined Kansas with 10 other states in an effort to head off federal regulation of greenhouse gases.

They seek to block federal courts from proceeding with a trial that Six says could lead to more restrictions on carbon emissions by utilities and other industries.

Six announced late last week that he has joined the state to a friend-of-the-court brief filed by Indiana in the case Connecticut v. American Electric Power Co.

The brief asks the U.S. Supreme Court to overturn an appellate decision to allow a trial in a lawsuit in which eight states sued six major power producers, alleging that their emissions of carbon dioxide and other gases were a public nuisance.

Another story appeared yesterday in the Pittsburg Kansas Morning Sun.

The Indiana Attorney General has taken the lead in the challenge to the 2nd Circuit decision. The ILB has not seen any local news or releases about this. The ILB has written in the past about the AG's ability to take a legal position on behalf of the State of Indiana in this manner -- see ILB entries headed "Who should decide Indiana's position on national legal issues? Who should know?", from 7/27/09, 8/7/09, and 10/3/09 (the last of which quoted the AG's public information officer: "Several of you have asked to be notified whenever the Indiana Attorney General files an amicus brief in a cert petition to the U.S. Supreme Court.")

Also interesting: the AG's position here is the same as that of the Obama administration. This August 25th NY Times story by Gabriel Nelson begins:

The Obama administration has urged the Supreme Court to toss out an appeals court decision that would allow lawsuits against major emitters for their contributions to global warming, stunning environmentalists who see the case as a powerful prod on climate change.

In the case, AEP v. Connecticut, the 2nd U.S. Circuit Court of Appeals sided with a coalition of states, environmental groups and New York City. The decision, handed down last year, said they could proceed with a lawsuit that seeks to force several of the nation's largest coal-fired utilities to reduce their greenhouse gas emissions.

The defendants -- American Electric Power Co. Inc., Duke Energy Corp., Southern Co. and Xcel Energy Inc. -- filed a petition for review with the Supreme Court earlier this month, asking the court to reject the argument that greenhouse gas emissions can be addressed through "public nuisance" lawsuits.

In a brief filed yesterday on behalf of the Tennessee Valley Authority, acting Solicitor General Neal Katyal agreed with the defendants, saying that U.S. EPA's newly finalized regulations on greenhouse gases have displaced that type of common-law claim.

Mother Jones' Kate Sheppard wrote on Aug. 27th:
The biggest problem, argue the plaintiffs, is that these promised EPA regulations aren't yet in place. According to the timeline issued by the agency, the initial rules aren't coming until 2011, and that’s just for the largest and newest sources of pollution. The EPA's initial regulations won't touch existing coal-fired power plants, such as those at the heart of this case, unless there are significant changes made to those facilities. It's not yet clear when, if ever, the EPA would start phasing in rules for all older plants.

The Obama administration didn't have to weigh in on the case at all, which makes its intervention all the more aggravating for environmentalists. "At the very least, they could have stayed out of it," said Jonathan Zasloff, a law professor at UCLA. Letting the case go forward could also create a greater impetus for legislative action on climate change, something the administration has maintained is its preference anyway, and given it more bargaining power over polluters.

Instead, Zasloff notes that the administration is basically giving big emitters an escape route, as utilities (including some of those involved in this case) are expected to challenge and attempt to delay the EPA regulations every step of the way. This will, of course, make it more difficult for the agency to accomplish what it says it will do. By siding with them in this case, Zasloff says, "essentially the Obama administration and the solicitor general appear to have made their own lives a lot more difficult."

And from David Dayen of FireDogLake, also on Aug. 27th, an entry that begins:
The Administration’s argument for trying to shut down a public nuisance lawsuit against the nation’s top greenhouse gas emitters is “an industry argument,” according to the co-lead counsel in the case, and has been contradicted by opinions of past Democratic Administrations.

Posted by Marcia Oddi on September 8, 2010 12:59 PM
Posted to Courts in general | Environment