US Supreme Court Rejects States' Greenhouse Gas Lawsuit

In an 8-0 decision in  American Electric Power v. Connecticut, written by Justice Ginsburg, the US Supreme Court yesterday rejected a lawsuit by states and NGOs against power companies that sought to limit the power generators' greenhouse gas (GHG) emissions.  The states argued that the power companies were contributing to global warming, which constituted a nuisance that was affecting the states and their citizens. An explanation of the decision from the Los Angeles Times is found here. SCOTUSblog, which should be everyone's first stop when considering Supreme Court deicisons, has this analysis from Lyle Denniston.

The Court found that the Clean Air Act left no room for regulation of GHGs through nuisance actions, and also noted the impracticality of judges trying, on a case-by-case basis, to limit GHG emissions. But anyone who thinks that this case is a clear victory for GHG emitters would be mistaken.  The Court did not reject limits on GHGs, it merely handed GHG regulation back to EPA.  If EPA doesn't act, or doesn't limit GHGs as the states hope, they can be right back in court, as summarized int he Court's syllabus:

The Act also provides multiple avenues for enforcement. If EPA does not set emissions limits for a particular pollutant or source of pollution, States and private parties may petition for a rulemaking on the matter, and EPA’s response will be reviewable in federal court. See §7607(b)(1).The Act itself thus provides a means to seek limits on emissions ofcarbon dioxide from domestic power plants—the same relief the plaintiffs seek by invoking federal common law. There is no room for a parallel track. Pp. 9–11.

This decision puts EPA in a strong position for pushing ahead with its plans for regulating GHGs.  EPA is certain to point out to Congress that if EPA does nothing, states will be free to petition for rulemaking, and perhaps renew their nuisance actions, on the ground that there is no federal preemption of GHG regulation. Unless Congress takes GHG regulation away from EPA, which appears unlikely at this time, EPA will continue to implement its Tailoring Rule and other GHG initiatives that are imposing limits on emissions of CO2 and other GHGs from large sources.  Whether EPA can proceed on that course will be determined by lawsuits brought by states and businesses against EPA, attacking the Tailoring Rule and the Endangerment Finding, because those EPA initiatives form the basis for action on GHGs.