C’mon Barack

by Pete Talbot

Apparently, our President isn’t really that committed to combating climate change.

According to Environment and Energy Daily, the Obama administration is urging the U.S. Supreme Court to toss out an appeals court decision that would allow lawsuits against major greenhouse gas emitters for their contributions to global warming.

(Here’s a link to the publication but unfortunately you need to subscribe to read the story. Trial subscriptions are available. I’ve reproduced the story below the fold.)

The case centers on what’s known as “public nuisance” lawsuits and the 2nd U.S. Circuit Court of Appeals ruled in favor of the plaintiffs — a coalition of states, environmental groups and New York City. The plaintiffs are filing a lawsuit that seeks to force several of the nation’s largest coal-fired utilities to reduce their greenhouse gas emissions.

Environmentalists were shocked with the administration siding with the big coal companies. From the story:

Matt Pawa, an attorney representing plaintiffs in the case, said he and his colleagues expected the White House to stay out of the matter. During a meeting with more than 30 administration lawyers at the solicitor general’s office on June 24, it seemed they had “a lot of friends in the room,” he said.

“We feel stabbed in the back,” Pawa said. “This was really a dastardly move by an administration that said it was a friend of the environment. With friends like this, who needs enemies?”

I’m feeling a little back-stabbed, too.

CLIMATE: Obama admin urges Supreme Court to vacate ‘nuisance’ ruling(08/25/2010)
Gabriel Nelson, E&E reporter

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 (Greenwire, Aug. 4).

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.

Katyal urged the court to vacate the decision and remand the case to the 2nd Circuit for further proceedings, this time taking into account the administration’s push to regulate greenhouse gases under the Clean Air Act.

The 2nd Circuit’s decision rested on the assertion that “EPA does not currently regulate carbon dioxide,” but that has since changed. The Obama administration has finalized several regulations in response to the Supreme Court’s 2007 decision inMassachusetts v. EPA, which told the agency to decide whether greenhouse gases were pollutants under the Clean Air Act.

“Since this court held in 2007 that carbon dioxide falls within that regulatory authority, EPA has taken several significant steps toward addressing the very question presented here,” Katyal wrote. “That regulatory approach is preferable to what would result if multiple district courts — acting without the benefit of even the most basic statutory guidance — could use common-law nuisance claims to sit as arbiters of scientific and technology-related disputes and de facto regulators of power plants and other sources of pollution both within their districts and nationwide.”

Matt Pawa, an attorney representing plaintiffs in the case, said he and his colleagues expected the White House to stay out of the matter. During a meeting with more than 30 administration lawyers at the solicitor general’s office on June 24, it seemed they had “a lot of friends in the room,” he said.

“We feel stabbed in the back,” Pawa said. “This was really a dastardly move by an administration that said it was a friend of the environment. With friends like this, who needs enemies?”

Top attorneys at environmental advocacy groups are buzzing about the brief, sources say. Some feel betrayed by a White House that has generally been more amenable to environmental regulation than its predecessor.

“This reads as if it were cut and pasted from the Bush administration’s briefing in Massachusetts,” said David Bookbinder, who served as the Sierra Club’s chief climate counsel until his resignation in May.

Climate and common law

Nuisance claims, a long-standing fixture of common law, are more often used to settle disputes with neighbors than to address an issue as wide-reaching as global warming. In the absence of congressional action, environmental groups say, such lawsuits could be used to make businesses, or anyone else, pay for the effects of their emissions.

Critics, including many industry groups, say the claims would lead to an inefficient and unfair jumble of litigation.

Two other similar cases are already working their way through the federal courts. In the 9th U.S. Circuit Court of Appeals, briefing is under way in Native Village of Kivalina v. Exxon Mobil Corp., while the 5th U.S. Circuit Court of Appeals recently reinstated a district court’s decision to dismiss Comer v. Murphy Oil, which was brought by Hurricane Katrina victims.

Because the White House supports legislation to limit greenhouse gas emissions, many attorneys expected the Obama administration to avoid criticizing a ruling that could become so disruptive that it would force Congress to take action. Jonathan Zasloff, a law professor at the University of California, Los Angeles, said in a recent blog post that the White House would undermine its goals by siding with utilities.

If the Supreme Court does not take the case, he wrote, “then the only way to get rid of the suit is for Congress to displace it. And the only way for Congress to displace it is to pass legislation. As is the case with EPA authority to regulate carbon, this puts more bargaining power on the side that wants regulation.”

Though the Supreme Court agrees to hear less than 1 percent of all petitions for review, a brief from the solicitor general tends to grab justices’ attention. The court could decide as soon as this fall whether to review the case.

Richard Faulk, chairman of the environmental practice at Gardere Wynne Sewell LLP, said industry groups want the Supreme Court to review and overturn the 2nd Circuit’s decision, but they would be fairly content if the justices followed the administration’s suggestions.

“So far, the petitioners haven’t asked that the case be remanded back, but it’s hard for me to imagine that anyone would be really disappointed if the Supreme Court decided to do that,” Faulk said. “People would like to see the case reversed, but having it sent back for further deliberation is certainly a better result than having the result affirmed.”

Click here to read the administration’s brief.

Reporter Robin Bravender contributed.

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  1. JC

    “Environmentalists were shocked with the administration siding with the big coal companies. “

    Well, when the admin has friends like gov Schweitzer rah-rah-ing big coal development, what do we expect.

    Pretty much the war against massive coal development has been lost:

    “More than 30 new coal-fired power plants have been built since 2008 or are under construction, representing the coal power industry’s largest expansion in decades. “Building a coal-fired power plant today is betting that we are not going to put a serious financial cost on emitting carbon dioxide,” an energy policy expert says. [Associated Press]”

    My Oh-so-gloomy prediction? After a lost decade or two economically due to the Great Recession, our next growth industry will be mitigating the impacts of climate change on our population and planet, driven to a large degree by coal burning.

    “Mitigate or Die” will be the motto of Generation M. And they will hate Gen X, Gen Y (the “Millennial”) and the Boomers for the legacy they left our planet.

  2. Big Swede

    I’m looking forward to the time when coal mining and solar work together side by side in harmony.

    Like that.

  3. Big Swede

    Kidding aside it’s getting worse for you guys.

    Lone Star state won’t participate in Obama’s lawless policy.

    For 16 years, the EPA allowed Texas to run its own permitting program to meet federal air-quality standards. But in May, the agency announced- out of nowhere – that the state is not in compliance with federal regulations. Even though Texas had met its clean-air obligations, the EPA announced it was taking over permitting.

    The EPA, determined to move forward anyway, is attempting to rewrite the Clean Air Act administratively via a “tailoring rule,” which would reduce the number of regulated sources. The problem with that approach? It’s illegal. The EPA has no authority to rewrite the law. To pull it off, the EPA needs every state with a State Implementation Plan to rewrite all of its statutory thresholds as well.

    Don’t mess with Texas.

  4. klemz

    I just downloaded the Solicitor General’s brief and plan to read it this afternoon. However, I can already tell you any administration is going to have a problem with using public nuisance to regulate emissions because it, arguably, allows the court to address the political question of what is reasonable regulation.

    I think your dervish is whirling so fast on the climate change issue that you haven’t thought to consider what other activities, erstwhile regulated by publicly-accountable federal agencies, might be regulated instead by private litigants if the courts are given that kind of power.

    • petetalbot

      The public nuisance lawsuits that I took a quick look at, klemz, seemed legit to me: giant hog farms soiling the environment, handguns, lead-based paint … Why not greenhouse gases?

      Anyway, if the 2nd Circuit Court of Appeals thought the suit had merit, there must be something to it.

      The EPA has said it might regulate carbon emissions but there’s been no action, yet. I have to wonder if the Obama administration is opposing the public nuisance lawsuit because it feels its agencies can do a better job of regulating greenhouse gases … or is there some other reason?

      I’ll take a longer look at the brief, too.

  5. Moorcat

    While I understand your upset about what you see as a ‘stab in the back”, this story just doesn’t meet the smell test.

    1) The court did not rule that the emissions could not addressed. It ruled that the “nuisence law” was not the way to go about it. That is what what courts do – establish the correct procedure to address an issue, establish standing and then move on.

    2) Obama’s administration did not “stab” these people in the back. In fact, from your story, he is doing exactly what you asked him to do – establish greenhouse gases as being under the purvue of the EPA. The judge ruled that, since those gases are now covered by the EPA, the nuisence law doesn’t apply.

    3) The BS about being stabbed in the back after the meeting with the administration lawyers is questionable at best. What does it mean when you say “During a meeting with more than 30 administration lawyers at the solicitor general’s office on June 24, it seemed they had “a lot of friends in the room,”. Did these lawyers say they would support the suit? Did they indicate thier legal view of the suit? This is ambigous at best and seems a lame justification to attack the Administration that is working on the issue – from a Federal Regulatory stance (just like you asked him too…).

    • petetalbot

      I don’t know, Moorcat, although greenhouse gases may be “under the purvue of the EPA,” the EPA doesn’t seem to be doing much about them. This from Reuters earlier this month:

      “The U.S. Environmental Protection Agency on Thursday proposed new rules to ensure factories and power plants will be able to obtain permits they will need to emit greenhouse gases starting next year.”

      So the EPA is issuing permits. Great.

  6. lawyers + red tape = convoluted logic X insanity.

  7. carfreestupidity

    Are any of us really that surprised at something like this anymore?

  8. Who was it said about Clinton that he would “pat you on the back while he pissed down your leg”?

    Oh yeah. A labor leader. Democrats are just being Democrats, pissing down your leg, while their apologists are just being apologists, offering you a towel.

    But the thing is, Pete, that you can’t spend your life being Charlie Brown, expecting that Lucy this time will not pull the football on you.

  9. Moorcat

    Oh I will be the first one to admit that doing anything in our current government takes ages. The beauracracy is rediculous and getting something like carbon emission regulations in place with teh EPA will take study after study and even then it will take time to impliment.

    That said, the push existed to move carbon emissions under the purvue of the EPA. Obama obliged (apparently under a lot of pushback from those opposed to the idea of carbon emissions being regulated). The courts felt that this issue should be addressed under the proper authority, not the nuisance laws.

    This is one of those time where you can’t have it both ways. I am sure it is frustrating but it is what it is.

  10. I have a sneaking hunch that more is at play here than that, given complete corporate infiltration of the Democratic Party.

    Rule #12 of the Rules of Washington:

    You can agree with any concept or notional future option in principle, but fight implementation every step of the way.




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