Washington Post: Two Birds in the Bush Are Worth One in the Hand?

Under the provocative title “Mr. Obama vs. the Greens,” the Washington Post today offered an internally contradictory view of a lawsuit against the nation’s five biggest carbon polluters.  The editorial begins by praising the Justice Department’s Solicitor General for asking the Supreme Court to stop the suit.  It ends by endorsing the very same lawsuit as a backstop in case EPA fails to act.  What’s going on here?

First, some background.  In 2004, in a case called Connecticut v. America Electric Power, eight states, New York City, and three private land trusts sued five electric power companies – American Electric Power, Southern Company, Duke Energy, Tennessee Valley Authority, and Xcel – that are the nation’s largest emitters of heat-trapping carbon dioxide.  Together these five companies account for 650 million tons of CO2 each year ­– one fourth of all power plant carbon pollution and 10 percent of total U.S. emissions.

NRDC is not a party to the case, but I and another NRDC attorney work with outside counsel to represent the land trust plaintiffs. 

The states and land trusts lost in federal district court, but in 2009 they won a sweeping victory from the Second Circuit Court of Appeals in New York (582 F.3d 309 (2d Cir. 2009) and available here without a subscription).  The Second Circuit followed 100 years of Supreme Court precedent and 400 years of common law in holding that the states and land trusts may go to federal court to sue power companies in other states, asking for an injunction to reduce their emissions that contribute to causing global warming.  In particular, the Second Circuit followed a 1907 Supreme Court case called Georgia v. Tennessee Copper, 206 U.S.230, in which the Justice Oliver Wendell Holmes said:

It is a fair and reasonable demand on the part of a sovereign that the air over its territory should not be polluted on a great scale by sulphurous acid gas, that the forests on its mountains, be they better or worse, and whatever domestic destruction they have suffered, should not be further destroyed or threatened by the act of persons beyond its control, that the crops and orchards on its hills should not be endangered from the same source.   

The Supreme Court relied on this case exactly 100 years later in upholding the right of states to sue for action under the Clean Air Act, in its 2007 global warming decision, Massachusetts v. EPA, 549 U.S. 497.

The four investor-owned power companies have asked the Supreme Court to review and overturn the Second Circuit’s opinion, rather than let the case go back to the district court for trial.  Because the TVA is partly governmental and partly private, the Justice Department’s Solicitor General also filed a brief urging that the case be stopped, though not on the same grounds.

To oversimplify, the Solicitor General argued that the right to sue under common law is cut off (“displaced”) because EPA is considering using the Clean Air Act to set standards for these power plants.

Now the states and the land trusts understand that if EPA actually uses the Clean Air Act to reduce the carbon pollution of existing power plants, that action will displace their suit.  That’s okay; that’s the way this area of law works.  But EPA has not actually regulated the power plants yet.  That should make a difference.

When the states and land trusts began this case in 2004 – court cases take a long time – the position of the Bush EPA was that it had no power at all under the Clean Air Act to curb carbon dioxide.   The Supreme Court set the Bush administration straight in the Massachusetts case in 2007, holding that CO2 can be curbed under the Clean Air Act – if EPA finds, based on the science, that it is dangerous, and if EPA sets standards.

To the Obama administration’s credit, EPA has in fact made the science-based determination that CO2 and other heat-trapping pollutants are dangerous.  And EPA has followed up with landmark emission standards for automobiles.   Further, next year the first requirements will take effect for new power plants.

But nothing has been done yet about existing power plants – the ones producing 650 millions of tons of carbon dioxide pollution each year. 

So here is where the Post seems to get confused.  The editorial says:

The administration pointed out that since the Second Circuit's ruling, the Environmental Protection Agency has nearly completed preparations to regulate greenhouse emissions from utilities under the Clean Air Act. As long as it addresses the nuisance the states identified -- and the administration makes a good argument that it does -- that policy displaces common law, the legal basis of the suit.

“Nearly completed” is something of an overstatement.  We have no formal commitment to set those standards and no schedule for doing so.  EPA has yet to propose any standards.  Then, properly, there will have to be an opportunity for public comments and hearings.  Only then – if everything stays on track – will EPA issue standards.  The standards probably will allow a lead-time before compliance is required.  And only then will companies begin to reduce their carbon pollution.

Only in the last paragraph does the editorial come around to acknowledging that the job’s not done yet:

Still, environmentalists rightly worry that the White House won't ever allow the EPA's prepared rules to come into force, given high political opposition to EPA carbon regulation. Congress may also try to strip the EPA of its ability to regulate. If the administration declines to regulate, after all -- or if Congress forces the EPA to desist -- the plaintiffs will have better grounds and better reason to sue than they do now.

(I’m actually more optimistic about White House cooperation than the first sentence suggests, but we’ll let that go.)

What the Post doesn’t seem to get is that this is that lawsuit.  The plaintiffs are glad to go home when the EPA does its job.  But not until then.  The right thing to do is send the Connecticut case back to the district court to begin the inevitably slow preparations for a trial.  The parties can keep that court informed on what EPA and Congress are doing.  The district court can decide if it wants to hold the case in abeyance for some period.

But the Post makes no sense when it suggests that the plaintiffs should be kicked out now and have to start all over again later.

Maybe when you run a daily newspaper you lose track of time.