Tuesday, the Obama administration filed a brief on behalf of utility giant Tennessee Valley Authority asking the Supreme Court to throw out a decision that could have forced five of the nation’s largest coal-fired power plants to reduce their global warming pollution.
The Solicitor General argued that the EPA’s recent efforts to reduce greenhouse gases made this type of common-law claim unnecessary.
But the EPA has not yet set any standards for the global warming pollution from the nation's fleet of existing power plants. Even the laudable steps already taken -- mainly carbon pollution standards for new cars -- are currently under attack from utilities, coal companies and some of our most far out political officials. Several pieces of draft legislation to block EPA are pending in Congress, following the Senate's failure to pass a new law to address global warming pollution.
The administration’s position here is wrong on the law and wrong on the policy, and NRDC is disappointed that in this instance at least it chose to side with coal polluters.
Eight states and three land trusts, for which NRDC acted as counsel, brought the original case in 2005 precisely because the executive branch and the legislative branch had failed miserably to address the worst environmental and humanitarian crisis of our time.
The limited steps the Obama administration has taken to date have not corrected yet that failure.
Now the executive branch has a chance to show real leadership. The Obama administration has demonstrated that it understands the science of climate change. It must move quickly to adopt rules to cut carbon pollution from existing power plants.
Coal-fired power plants are the biggest source of global warming pollution, and they must be held responsible for cleaning up their dangerous emissions.
The 2nd U.S. Circuit Court agreed in its original decision, ruling that utilities can be sued to reduce the damage they cause by freely releasing their global warming pollution.
Our case was based on very old, longstanding legal principles (see my article about it in the Columbia Journal of Environmental Law). We argued that dumping greenhouse gases into the air was a public nuisance. For 400 years, courts have honored the common law right to protection from your neighbor’s pollution. This concept was explained to me in law school like this: your right to swing your arm ends where my nose begins.
There was nothing novel or alarming in our case against power plant pollution. Instead, it is the Solicitor General who is taking a shocking approach. I find his argument on prudential standing contrary to any belief in an open justice system. He seems to want to cut people out of the courts even before a case gets to the merits.
In addition, his request to have the Supreme Court to vacate the 2nd Circuit Court’s ruling would in effect undermine the 400-year-old principle that pollution is a nuisance. The Solicitor General should not be asking the High Court to kill the ruling. In fact, the Supreme Court doesn’t even need to be involved in this case, considering the 2nd Circuit Court is perfectly able to deal with any outstanding questions of preemption.
But even as the legal implications of this case continue to unfold, President Obama must act now to reduce global warming pollution. The extreme weather events happening around the world, from the devastating floods in Pakistan to the heat wave and fires in Russia and the torrential rains and mudslides in China, make it clear that global warming is already upon us.
The EPA must use its congressionally mandated power to reduce the pollution that is causing this crisis by setting standards to curb the emission of America’s number one carbon polluter: power plants.