Truth, justice and industry prevailed today when the Supreme Court rejected the attempt by various states, New York City and several environmental groups to have the judicial system regulate the limits on green house gas emissions. In American Electric Power Co. v. Connecticut (No. .10-174), the Supreme Court ruled (in an 8-0 decision) that it would leave the standard setting and green house gas emission controls to the experts. Since the Clean Air Act and the associated regulations of the Environmental Protection Agency authorized by the Act provide the mechanism by which limits on emissions of carbon dioxide from domestic plants are addressed, "there is no room for a parallel track," and federal common law is not available as a way to sidestep this process. The Supreme Court's decision overturns the ruling by the Second Circuit that permitted these same plaintiffs to proceed with these lawsuits against various electric utilities, which alleged that the defendants' green house gas emissions were considered a public nuisance that contributed to global warming.
Justice Ginsburg's opinion went on to explain that the system has its own checks and balances. Specifically, once the limits are set, these same groups can then use the judicial system to challenge the limits. The Court relied on the fact that this process allows those that are best suited to make the determinations to do so. "It is altogether fitting that Congress designated an expert agency, here, EPA, as best suited to serve as primary regulator of greenhouse gas emissions. The expert agency is surely better equipped to do the job than individual district judges issuing ad hoc, case-by-case injunctions. Federal judges lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order."
The Supreme Court declined to address the state law nuisance claim, finding that its decision on the federal common law question precluded the need to do so. Justice Sotomayor recused herself since she was a member of the Second Circuit when it heard oral arguments in Connecticut v. American Electric Power Co.
Thus, for now, it appears that industry will need to keep its eyes on Congress and EPA to make the next move, since victory was achieved in the courtroom.