Utilities carbon emission appeal goes to Supreme Court

By Lisa Gibson | December 07, 2010

The U.S. Supreme Court will hear an appeal from five of the country’s largest utilities, together challenging a ruling by the federal appeals court in New York that they can be sued to curb their carbon dioxide emissions. The decision is the next action in a series of events that began six years ago.

American Electric Power, Excel Energy, Southern Co., Duke Energy and the Tennessee Valley Authority have been granted petitions to review the decision of Connecticut versus American Electric Power. In that 2004 district court case, a coalition of states, private land trusts and New York City sued the utilities for their alleged contributions to climate change. The plaintiffs sought a court order requiring defendants to cap and reduce their emissions. The court, however, dismissed the plaintiffs’ claims, ruling that the case raises a political question that can only be addressed by the legislative or executive branches of the government.

But in September of 2009, the Second Circuit Court of Appeals reversed the district court decision and reinstated the case, ruling that all plaintiffs had constitutional standing to bring the case; and that the plaintiffs had made a successful claim under the federal common law doctrine of nuisance.

Now at the Supreme Court level, the utilities are cooperatively building a case for their appeal of the Second Circuit Court’s decision, focusing partially on the enormous significance and global impact of the issue. “It’s important for huge policy decisions and ones of global significance to be coming from Congress,” said Erin Culbert, spokesperson for Duke Energy, which has power plants in Indiana, Ohio, Kentucky, North Carolina and South Carolina. The Supreme Court will begin to hear oral arguments in the spring of 2011, Culbert said, although she declined to discuss specifics of the defendants’ arguments. “I think it’s also important to point out that all our coal-fired fossil plants already meet the requirements of the Clean Air Act and other state and federal regulations for air quality and permit compliance.”

Most of the five defendants already use biomass, from woody materials to methane, at one or more plant locations to reduce carbon emissions.

“We are looking forward to presenting our arguments to the nation’s highest court as to why, under a century of jurisprudence, this case is proper,” said plaintiff attorney Matt Pawa in a statement. “The judiciary has always been available to hear claims against polluters under tort law doctrines. Global warming presents a pollution case that fits within a well-established legal framework.”