American Electric Power v. Connecticut

The most important thing about this [Supreme Court] decision is that it buttresses the foundation for EPA to do its job,” said Environmental Defense Fund President Fred Krupp. “The Supreme Court strongly underscored EPA’s responsibility under the law to address climate pollution that threatens the health and well-being of our nation.”

The United States Supreme Court ruled Monday in American Electric Power v. Connecticut that because the Environmental Protection Agency has the authority and responsibility to regulate global warming pollution that endangers American health and welfare, a lawsuit asking for court-imposed limits on power plant emissions brought under the federal common law of nuisance must be dismissed.

The Court found that because Congress had granted EPA the authority to regulate greenhouse gas pollution in the Clean Air Act, EPA’s authority “displaces” the federal common law in this area. This ruling reaffirms EPA’s Congressionally mandated responsibility to tackle global warming pollution and power plant emissions that threaten the integrity of Texas climate and air and the health of Texas citizens.

The nuisance case was brought by the states of California, Connecticut, Iowa, New York, Rhode Island, and Vermont, as well as the City of New York and several land trusts against the nation’s five largest emitting power companies. These companies include AEP, Southern Company, Xcel Energy, Cinergy, and TVA. Power plant smokestacks are the single largest source of carbon pollution in our nation, responsible for nearly 40 percent of all U.S. emissions.

The Supreme Court’s decision describes at length EPA’s development of greenhouse gas New Source Performance Standards for new and existing power plants under the Clean Air Act and EPA’s commitment to complete the regulations by May 2012:

“EPA is currently engaged in a [Clean Air Act] rulemaking to set standards for greenhouse gas emissions from fossil-fuel fired power plants.  * * * [T]he agency agreed to complete that rulemaking by May 2012. [Citation omitted]. The Act itself thus provides a means to seek limits on emissions of carbon dioxide from domestic power plants – the same relief the plaintiffs seek by invoking federal common law. We see no room for a parallel track.”

The Court also notes that under the Clean Air Act:

“[i]f EPA does not set emissions limits for a particular pollutant or source of pollutions, States and private parties may petition for rulemaking on the matter, and EPA’s response will be reviewable in federal court . . . . EPA may not decline to regulate carbon-dioxide emissions from power plants if refusal to act would be ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’”

Environmental Defense Fund is a party to the settlement agreement requiring EPA action to address power plant pollution under the Clean Air Act.

This decision marks the second time that the Supreme Court has spoken out on the issue of climate change: the first time in 2007 in Massachusetts v. Environmental Protection Agency, and now a second time, when the Court has affirmed EPA’s authority to address greenhouse gas emissions that threaten public health and welfare.

However, EPA’s efforts to fulfill its responsibilities under the Clean Air Act have been criticized by Members of Congress. Recently proposed legislation sought to strip the EPA from using the Clean Air Act to regulate global warming gases. Although the proposed legislation failed in the Senate, many U.S. House members continue to oppose EPA’s efforts to reduce global warming pollution.

This type of opposition is nothing new. In April, Representative Joe Barton criticized EPA’s analysis showing that the agency’s mercury and air toxic standards would prevent thousands of premature deaths each year. Rep. Barton questioned whether exposure to mercury and other toxic air pollutants was a “medical negative”, a statement that, at best, could be described as irresponsible. Such comments prompted several public health organizations to respond to Barton in a letter outlining the health impacts of air pollutants such as mercury. Barton’s comments were not ground in science, and appeared to be an attempt to diffuse support for EPA’s rulemaking to adopt protective Air Toxics standards, which would greatly reduce harmful power plant emissions. [See also my May 13 post “Medical Community Responds to Ill-Worded Comments.”]

We face a time that calls for political bipartisanship. Democrats and Republicans alike must bridge ideological differences to create policy that ensures the health of our people and quality of the air we all breathe.

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One Comment

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