by Bob Tippee, Editor
The June 20 US Supreme Court ruling in a case involving greenhouse gas (GHG) emissions by electric power companies was good for the oil and gas industry but far from everything needed.
In American Electric Power Co. v. Connecticut, the high court held unanimously that courts shouldn't regulate GHGs.
Original plaintiffs—eight states, New York City, and three nonprofit land trusts—asked courts to set GHG emission limits for five large power companies. Their argument: By emitting large amounts of GHGs, the companies contributed to global warming. This, they said, interfered with public rights in violation of federal common law related to "public nuisance" or of state tort law.
AEP v. Connecticut was the first climate-change case on which the Supreme Court has ruled. In other cases that might reach the ultimate stage of jurisprudence, plaintiffs seek damages for harm sustained in weather catastrophes. They say defendants, including oil companies, should compensate them because their GHG emissions aggravated the storms.
In any of these cases, a Supreme Court decision favoring original plaintiffs would start a costly litigation spree.
The court didn't totally foreclose such horror in the AEP case. It narrowly specified that the Clean Air Act, under which it has ruled the Environmental Protection Agency has authority to regulate GHGs, fully displaces federal common law.
Because plaintiffs in the original AEP case sought only an injunction, applicability to cases involving damage claims might be in question. And because the high court ruled only on displacement of federal common law, state tort law remains a possible avenue for litigation.
Also, the court didn't revisit in the AEP case EPA's authority to regulate GHGs under the Clean Air Act. Original plaintiffs hadn't made that an issue.
Too bad. Control of GHGs is a political issue. As the Supreme Court has now ruled, it doesn't belong in the courts. It doesn't belong in the federal bureaucracy, either, but that question remains far from settled.
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