Supreme Court to Consider Legality of CO2 Lawsuits Against Utilities

DRI–The Voice of the Defense Bar urges the Court to scrutinize Second Circuit Court’s reversal.

The Supreme Court has granted certiorari in American Electric Power v. Connecticut, litigation seeking an answer to whether eight states and other plaintiffs can proceed with lawsuits that seek to reduce carbon-dioxide emissions by utilities.

DRI – The Voice of the Defense Bar applauded the High Court’s decision to review the case.

The case focuses on the activities of eight states, New York City, and several environmental groups to require utilities operating fossil fuel-fired electric power plants to reduce emissions under public nuisance laws. The Supreme Court will determine whether the states can regulate greenhouse gases as a public nuisance under federal common law.

The suit was most recently considered by the Second Circuit Court of Appeals, (pdf) which reversed a District Court ruling dismissing a request for injunctive relief.

The lower court found that plaintiffs’ request for injunctive relief was not appropriate for a judicial proceeding, a sentiment echoed by the Obama Administration, which argued that the issue is best taken up by legislation, or regulated by the U.S. Environmental Protection Agency.

“Activists turn to litigation to solve problems that are best left to the jurisdiction of Congress or the agencies created to solve them,” said John Parker Sweeney, immediate past chair of the Climate Change Litigation Task Force of DRI. “The Supreme Court’s decision to hear this case offers an opportunity to set precedent on the role of courts, Congress, and regulatory bodies in climate change issues.”

The case also is being closely watched by the business community. Oil companies, chemical companies, mining companies, and the automotive industry urged and backed the Supreme Court’s decision to grant certiorari.

Sweeney said, “The fact that the Court has decided to review this case shows that the justices want to take a hard look at the reversal by the Second Circuit. As such, we expect that the Supreme Court will uphold the lower court’s decision and dismiss the case.”

The case will be heard in spring 2011, with a ruling expected in June.

DRI – The Voice of the Defense Bar is the national organization of more than 22,500 defense trial lawyers and corporate counsel. DRI provides numerous educational and informational resources to members and offers many opportunities for liaison among defense trial lawyers, Corporate America, and state and local legal defense organizations. DRI also has an international presence, seeking to enhance understanding of the law among members of the defense community who have reason to be concerned with the expanding globalization of litigation defense.