U.S. Supreme Court to hear oral arguments next week on landmark greenhouse gas case

On Tuesday April 19, 2010 the Supreme Court of the United States is scheduled to hear oral arguments on the biggest greenhouse gas/global warming related case since Massachusetts v. EPA (2007) (where the Supreme Court held that the Clean Air Act allows the EPA to regulate GHG emissions from automobiles).

In American Electric Power v. Connecticut, a conglomerate of 6 states*, 3 not-for-profits and New York City ("States") will take on the nation's 5 largest GHG emitters (large electricity generators).
*NJ and WI are no longer part of this suit.

The legal issues to be argued: (1) whether states may sue for injunction under the common-law tort theory of "public nuisance" based on global warming-related injuries ; (2) whether the "political question doctrine" prevents the courts from hearing this suit; and (3) whether the Clean Air Act or EPA regulations preempt this action.

Don't think anyone is interested? Think again. As of Saturday evening, there have been at least 22 amicus briefs for the respondents (power plants) and 9 for the petitioners (the states ).

The power plants include: American Electric Power; Duke Energy Corp. (d/b/a Duke Power) (formerly Cingergy Corp); Southern Company (which is spread out across 5 southern states); Xcel Energy (serving 8 mid-west and western states), and the Tennessee Valley Authority.

The stage will be set for the Supreme Court (minus recently minted J. Kagan) to decide this pivotal environmental case. Because this case is in the "motion to dismiss" stage, the Supreme Court will be decide this case "on the pleadings," with discovery yet to occur. For that reason this case important for both environmental and federal litigation reasons.

Some posit that the case would "open the floodgates to GHG litigation" and that GHG "limits" are better left for the "political branches" to, while others believe that this case is important for advancing human health and our environment.

The Supreme Court is without a doubt going to aggravate a large group of people. Either power generators (which include the U.S. government) or environmental advocates. The funny thing is that even if the States "win," the case is likely to be remanded to the District Court; back to the same judge who granted the power plants' motion to dismiss in the first place.

A 4-4 split, I believe, would allow the case to move along, with J. Kennedy probably being the swing-vote.

I wonder how this one is going to play out...

A few things to consider: will allowing this litigation to proceed increase electricity rates across the country because smaller generators will begin preparing for litigation? If dismissed under the political question doctrine, will the Congressional Republicans continue their attempts at stripping the EPA and the Clean Air Act of GHG-regulating powers? Will the Supreme Court overturn Mass. v. EPA?