U.S. SUPREME COURT TO HEAR MAJOR GREENHOUSE GAS CASE
December 6, 2010 - For Immediate Release
December 6, 2010 – DENVER, CO. A western, nonprofit, public-interest legal foundation long active in litigation in environmental issues, welcomed today’s news that the U.S. Supreme Court will hear a case that asks whether States have the constitutional right to file nuisance lawsuits by asserting harm from climate change or greenhouse gases (GHG). Mountain States Legal Foundation (MSLF), which has litigated environmental issues, particularly issues regarding the right of so-called environmental groups to sue alleging harm, had urged the Court, in an amicus curiae brief, to hear the case due to tension between the Court’s 1992 ruling as to when a party has the legal right to sue (“standing”) and its 2007 ruling regarding carbon dioxide. MSLF argues that, in four specific ways, the 2007 GHG ruling conflicts with the Court’s “well-known” 1992 ruling regarding standing and thereby opens the floodgates to federal litigation contrary to the Constitution.
“We are delighted with the Court’s decision to hear this case so as to resolve the mischief created by its 2007 carbon dioxide ruling,” said William Perry Pendley, MSLF president. “In addition to permitting the EPA to issue its ‘cap and trade’ rules, the 2007 ruling also conflicts with rulings of the Court as to who has the constitutional right to make use of the federal courts.”
In July 2004, eight States, New York City, and three private land trusts sued American Electric Power Company Inc., American Electric Power Service Corporation, Southern Company, Tennessee Valley Authority, Xcel Energy, Inc., and Cinergy Corporation alleging their carbon dioxide emissions caused environmental degradation, economic injury, and harm. The States argued that the companies must cap and reduce their carbon dioxide emissions. In September 2005, a federal district court in New York dismissed the lawsuit as non-justiciable under the political question doctrine.
In September 2009, the U.S. Court of Appeals for the Second Circuit, in a 139-page opinion, reversed, holding that the political question doctrine did not bar court review of the claims, that all plaintiffs had standing, and that the claims were permitted by federal common law nuisance principles. On August 2, 2010, the defendants filed a petition for writ of certiorari.
After the New York case was filed, three similar tort lawsuits against GHG emitters were filed in Mississippi and California. Although a Supreme Court ruling would address the viability of such lawsuits, various issues are likely to remain unresolved, including whether such future plaintiffs could prove the merits of these types of cases, specifically, liability, causation, and damages. Those issues would have to be addressed in future rulings by trial courts, the courts of appeals, and perhaps even the Supreme Court.
Mountain States Legal Foundation, founded in 1977, is a nonprofit, public-interest legal foundation dedicated to individual liberty, the right to own and use property, limited and ethical government, and the free enterprise system. Its offices are in suburban Denver, Colorado.American Electric Power Company v. Connecticut, No. 10-174, Sup. Ct.
Mountain States Legal Foundation (MSLF) is a nonprofit,
public interest legal foundation dedicated to individual liberty, the right
to own and use property, limited and ethical government, and economic freedom. It is an Internal Revenue Code 501(c)(3) entity
incorporated in the State of Colorado. Csontributions
to Mountain States Legal Foundation are tax deductible.
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