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COOLER HEADS: New York Solicitor General Barbara Underwood (left) and Sidley Austin partner Peter Keisler during oral arguments in the case of American Electric Power v. Connecticut.(Sketches by Art Lien. View Lien’s work at www.courtartist.com.)

The Supreme Court on Tuesday threw cold water on the effort by states to attack global warming through litigation against power companies. Seven of the eight justices participating in oral arguments in the case of American Electric Power v. Connecticut offered comments or questions that appeared critical of the scope or concept of a suit against major utilities that claims their output of greenhouse gases is a public nuisance under federal common law. The eighth justice, Clarence Thomas, asked no questions as usual. And the ninth, Justice Sonia Sotomayor, did not participate because she heard the case at an earlier stage as a circuit court judge. In spite of a seemingly solid wall of opposition, however, some justices saw a potential role for federal courts in dealing with aspects of the issue of climate change. “I would frankly rather have federal judges do it,” said Justice Antonin Scalia, as opposed to opening the door to tort lawsuits against utilities at the state level. And Justice Anthony Kennedy confessed a desire to “peek at the merits” to see if the states had standing to sue. The dispute, billed as one of the biggest and most complex of the current Supreme Court term, drew a large audience to a longer-than-usual oral argument. The Court extended arguments to 80 minutes instead of 60, though toward the end, it seemed the justices ran out of questions to ask. The case drew wide interest from other groups interested in the debate, with 23 amicus curiae briefs for the utilities, and nine for the states. The overwhelming tenor of the justices’ questions Tuesday was skepticism that courts should be deciding emissions standards and other possible remedies for climate change, instead of Congress and the Environmental Protection Agency. After staying out of the controversy during the Bush administration, the EPA under President Barack Obama has begun the rulemaking process for limits on greenhouse gases. “It sounds like the paradigmatic thing that administrative agencies do rather than courts,” said Justice Elena Kagan, who was not alone among liberal members of the Court who were critical of the lawsuit. Justice Ruth Bader Ginsburg also wondered aloud how courts would develop the same kind of emissions standards that the EPA is establishing though a notice and comment process. Justice Stephen Breyer, for his part, asked if a judge could impose a tax on polluters as a way to reduce emissions. When told no, Breyer asked why a judge would have the power to impose other remedies as well. Sidley Austin partner Peter Keisler set the stage for the Court’s skepticism, as did U.S. Acting Solicitor General Neal Katyal. Keisler represented the defendant utility companies except the Tennessee Valley Authority, which was represented by Katyal. In measured tones, Keisler said the suit raised competing issues that are “among the most complex, multifaceted and consequential” of any policy debate before the country. He rattled off the grounds on which he was seeking dismissal of the suit – among them standing, the scope of federal common law, and whether it involves a “nonjusticiable political question” – which all “flow from the same basic separation of powers principles” that should end the case. Speaking in more sweeping terms, Katyal said that in the 222-year history of the high court, “It has never heard a case with so many potential perpetrators and so many potential victims.” That’s because a myriad of individuals and businesses could be said to contribute to global warming in their everyday activities. Katyal argued the case should be dismissed on “prudential standing” grounds, a principle under which judges stay out of cases they think other branches are more competent to handle. Several justices seemed skeptical of that argument, but there were other grounds on which they seemed ready to dismiss the suit. At one point Chief Justice John Roberts Jr. said if the states’ lawsuit is allowed to proceed, it would put a U.S. district court judge in the position of deciding the costs and benefits of remedies that would affect the world’s economy. “That’s a pretty big burden to impose on a district court judge,” Roberts said. Scalia picked up on the utilities’ point, positing that a plaintiff could “lump together all the cows in the country” and sue farmers for their role. Or, he said, “you can lump together all the people in the United States who breathe.” New York Solicitor General Barbara Underwood tried mightily to portray the suit as smaller than that and manageable enough for a judge to handle. The number of defendants, for example, could be limited to “thousands or hundreds or tens” depending on their contribution to the problem, she said, citing traditional nuisance lawsuits from the past. Justice Samuel Alito Jr. did not appear to agree, “Do you seriously argue that this isn’t orders of magnitude more complicated” than past cases, he asked her sharply. “It’s larger. I don’t know if it’s more complicated,” she replied calmly. Underwood also said the plaintiffs would have to prove their claims through discovery and trial that could also limit the suit’s scope and impact. “But this court should not close the courthouse door to this case at the outset.” With a Court that usually does not like to be told to butt out of an issue completely, that might have ordinarily been a compelling argument. On rebuttal Keisler, perhaps sensing that possibility, assured the Court the judiciary has a role to play – if Congress acts first, by setting emissions standards for greenhouse gases that then could be interpreted and weighed in court. “It’s not that this is permanently off limits to the judiciary,” Keisler told the justices. “It’s that it requires a standard.” Common law lawsuits like the one launched by the states, he said, “have no principle here to guide the decision.” The case before the Court began in 2004 when eight states, New York City, and three private land trusts, sued what they claimed were the nation’s five largest sources of greenhouse gases. In the absence of action by the Environmental Protection Agency, they sued under centuries-old concepts of “public nuisance” law, seeking injunctive relief to abate the nuisance. The U.S. District Court for the Southern District of New York dismissed the suits in 2005, ruling that the issues raised were “non-justiciable political questions.” On appeal, the U.S. Court of Appeals for the 2nd Circuit heard the case in 2006. Then-judge Sotomayor was a member of the panel, but by the time the panel ruled in 2009, Sotomayor had been elevated to the Supreme Court. The remaining two judges on the panel reversed the district court, ruling that the case did present issues that could be judicially resolved, and that the Clean Air Act did not displace or pre-empt a public nuisance lawsuit. Meantime, the Supreme Court in 2007 ruled in the Massachusetts v. EPA case that the Clean Air Act does authorize the Environmental Protection Agency to regulate in the area of climate change and greenhouse gases. Since the change in administrations in 2009, as the U.S. government’s brief states, the EPA’s position has “dramatically changed” and the agency has declared carbon dioxide a pollutant that can be regulated. Tony Mauro can be contacted at [email protected].

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