Justices skeptical of states' global warming lawsuit

WASHINGTON  The Supreme Court appeared ready to rule that federal judges cannot set limits on greenhouse gas emissions, after a majority of justices suggested Tuesday that such disputes over global warming are better left to Congress and federal regulators.

Five power companies, including American Electric Power, are appealing a lower court decision that would permit a group of six states and the city of New York to sue under federal "public nuisance" law and claim the plants' emissions intensify global warming.

During a spirited session of oral arguments, the justices voiced doubt that judges have the authority or expertise to handle the complex emissions dilemma that is international in scope and that the government says is being addressed by the Environmental Protection Agency. A ruling would determine whether states can seek remedies in court for harm caused by carbon dioxide emissions and whether utilities would be subject to new litigation and possible caps on emissions.

"Asking a court to set standards for emissions," Justice Ruth Bader Ginsburg said, "sounds like the kind of thing that EPA does. Congress set up the EPA to promulgate standards for emissions."

"How does a district judge decide what is reasonable and cost-effective?" Justice Samuel Alito asked. "This is not a situation in which the emission of greenhouse gases can be totally prohibited."

Justice Elena Kagan added that pollution lawsuits usually are local affairs: "One factory emitting discharge into one stream. They don't involve these kinds of national/international policy issues of the kind that this case does."

Tuesday's environmental dispute tests the separation of powers among branches of government. The question is whether judges may hear allegations that power plant emissions are contributing to global warming, hurting people's health and destroying the environment.

The six states (Connecticut, New York, California, Iowa, Rhode Island, Vermont) and New York city cite as examples across the country increasing smog and heat-related mortality, reduced crop and livestock yields, and the shrinking of mountain snowpack.

The states say the five big plants exacerbate the harm by emitting 650 million tons of carbon dioxide a year, which the states say is 10% of the nation's annual emissions. The U.S. Court of Appeals for the 2nd Circuit, based in New York, said the case could go forward. It said court action would not conflict with federal regulators because EPA had not finalized any regulation of greenhouse-gas emissions at the power plants.

Appealing the 2nd Circuit decision, lawyer Peter Keisler, representing the power companies, said the states have wrongly asked judges "to perform a legislative and regulatory function" on an issue that "is among the most complex, multifaceted, and consequential of any policy issue now before the country."

He said the dispute differs from a 2007 Supreme Court case in which the majority ruled that the EPA has authority to regulate carbon dioxide emissions from new vehicles, because that involved discrete regulatory power under federal law. "The global nature of this phenomenon makes it different because every sector of the economy worldwide produces greenhouse gases," Keisler said.

Supporting that general position was Acting U.S. Solicitor General Neal Katyal, who told the justices, "In the 222 years that this court has been sitting, it has never heard a case with so many potential perpetrators and so many potential victims."

He urged the justices to rule that the greenhouse-gas dilemma is not a matter for judicial resolution. "The very name of the alleged nuisance, 'global warming,' itself," he said, "tells you much of what you need to know. There are billions of emitters of greenhouse gasses on the planet and billions of potential victims as well."

Justice Ginsburg asked what the EPA was doing to reduce emissions. Katyal said any power company that seeks to increase its carbon dioxide emissions would be subject to new regulation and that other limits are being devised. He said the problem is "being addressed with a panoply of different federal actions ... (including) an executive order that says that fighting global warming is one of the government's highest priorities"

New York Solicitor General Barbara Underwood, urging the court to let the case proceed, said such EPA promises for limits on emissions are not enough. "A lot can happen to delay or derail the fulfillment of a promise," she said.

Underwood emphasized states' authority "to protect their land, their natural resources, and their citizens from air pollution." She said judges should be able to order "cost-effective" measures to reduce emissions and slow the effects of global warming.

None of the eight justices who heard the case Tuesday voiced notable support for that position. Justice Sonia Sotomayor, who had been a member of 2nd Circuit court that heard the case, did not participate. A decision in American Electric Power Co. v. Connecticut is expected by summer when the justices recess for the term.