Can states sue electric companies for failing to reduce their greenhouse gas emissions? The Supreme Court has agreed to hear this case. The high-profile case, American Electric Power v. Connecticut, established in 2004 that coal-burning utilities were liable for lawsuits because of public nuisance for their contribution to climate change. The review by the Supreme Court is seen as a win for the utilities in question—American Electric Power, Duke Energy, Southern Company, Xcel Energy and the Tennessee Valley Authority—as it gives them the opportunity to try reversing the lower court’s decision. The power companies assert that this is not a judicial issue but a legislative one that should be handled under the EPA’s Clean Air Act to regulate greenhouse gases, essentially that the Clean Air Act trumps common law decisions. However, as explained by UCLA law professor Jonathan Zasloff:
The EPA’s regulation only applies to mobile sources, not stationary sources like power plants. Thus—and here is the kicker—until the EPA actually starts regulating all sources of carbon dioxide, the Court said that it can’t really determine whether or not displacement has occurred. This holding is potentially significant, because it can put polluters in a real bind. Their normal strategy is to tie up new regulations in the courts for several years—maybe until they can get a more friendly administration. But now, the Second Circuit has told them that the only way to get rid of the public nuisance lawsuit is to let those regulations go into effect. The judges have told the power companies to choose their poison.
The Supreme Court is scheduled to hear the appeal in March 2011.