SCOTUS Holds That Plaintiffs Cannot Maintain Federal Common Law Nuisance Claims Against GHG-Emitting Utilities but Leaves Window Open for State Common Law Claims
On June 20, 2011, the Supreme Court reversed the Second Circuit’s decision in American Electric Power, Co., Inc. v. Connecticut, No. 10-174, but on narrower grounds than some had hoped. The Court held 8-0 that Connecticut and a coalition of seven other states, the City of New York, and three land trusts could not proceed with their federal common law public nuisance claims against carbon dioxide emitters (four private power companies and the federal Tennessee Valley Authority).
The Court held that the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel power plants. While the Court’s decision effectively precludes the plaintiffs and similarly situated parties from seeking to limit greenhouse gases under federal common law, it leaves open the possibility that parties may pursue similar claims under state common law.
The Court was split (4-4) on whether plaintiffs had standing to bring this claim. This means that the Second Circuit’s finding that plaintiffs did have standing (and that the court therefore had jurisdiction to hear the case) stands, although that ruling is not binding on other circuits. Thus, the Court’s decision does not provide a jurisdictional bar to future climate change tort lawsuits, which was sought by the power company defendants. The industry had hoped to limit the Court’s standing holding in Massachusetts v. EPA, 549 U.S. 497 (2007). The Court did not address whether the political question doctrine bars tort suits related to climate change, which potentially would have been a more broadly applicable basis for reversal.
Thus, in future actions seeking damages for harm resulting from climate change based on state common law theories, issues of preemption of state law, standing, and the political question doctrine still may need to be adjudicated. The Court did hint, however, that state law actions would be preempted by the Clean Air Act. On the other hand, plaintiffs will point to the fact that the Court specifically noted that the test for displacement of federal common law presents a lower threshold than preemption of state law. The next tort battles will likely be in state courts or federal courts with diversity jurisdiction. Plaintiffs also may follow the Court’s advice and file actions pursuant to the Clean Air Act.
Four Bright Green Spots in the Budget
As I’ve mentioned before, I’ve been spending a lot of time this year helping clients see how the American Reinvestment and Recovery Act (ARRA) can help support their environmental initiatives.
But last week, when the President sent Congress the fine print of his proposed Fiscal Year 2010 budget, even I had a start: Never before has US government set out to make its spending so green. Not even the stimulus.
Here’s a list of Four Green Bright Spots:
1. Pouring Money Into Water. The Environmental Protection Agency’s funding will increase roughly 30 percent from the $7.6 billion in the fiscal 2009 omnibus to $10.5 billion.
There’s a massive increase for water infrastructure, including $2.4 billion for the Clean Water State Revolving Fund, a low-interest wastewater loan program that helps states construct water treatment facilities. (The fund received just $689 million in fiscal 2009.) The Drinking Water State Revolving Fund would receive $1.5 billion, up from $829 million this year.
2. Carbon Infrastructure. The EPA will dedicate $17 million to the development of a GHG registry for US greenhouse gas emissions. As we’ve written before, this is a necessary first step toward regulating carbon emissions.
3. Oil is Out. Over at the Department of Energy, the proposed spending is flat from last year. Of course, that doesn’t include the nearly $40 billion showered on the department from the stimulus law for alternative-energy and efficiency initiatives. There are significant changes in emphasis on spending, though when it comes to fossil fuels. The budget completely cuts funding for the oil research and development program authorized by the 2005 Energy Policy Act. Finally, a budget that leaves behind the perverse incentives supporting fossil fuels that are costing us so much more than their sticker price.
4. Adaptation Gets Attention. State Department is contributing $600 million to two World Bank funds, one that supports clean technology in the developing world and the other that helps spur adaptation solutions in countries struggling with climate change. Over at Interior, the department is touting $183 million in increases for clean energy and the mitigation of climate impacts on the home front.
I’m sure there’s more to find, but the four points give some sense of this extraordinary bright green spending plan that, if adopted, will change the federal government’s impact on the economy.
Is Coal the Fuel of the Future?
Every one is looking for the silver bullet that will get the United States off of fossil fuels. My hunch is that we’ll pursue all of the alternatives like wind and solar, but we’ll spend a lot of resources making our dirtiest fuel, coal, less dirty. And while clean coal has its skeptics, others recognize it has a place in the mix.
I place myself in the latter camp. I’ve just penned my thoughts on why that’s the case in a guest commentary for Law360. Click here (subscription required) for the full article.
Food vs. Fuel and Impacts on Climate Change: Biofuels Under Siege
Concern about world food prices and shortages is causing law makers in both the EU and the US to consider either a moratorium or a cutback in biofuels production. In particular, ethanol produced from corn is being blamed as a significant contributor to the world food crisis. [summary]
International concerns over world food prices and shortages has recently triggered a major fuel-or-fuel debate. A UN official said recently that massive production of biofuels is “a crime against humanity” because of its impact on global food prices. In its April 7 cover story, Time Magazine, blasted the impact increased biofuels consumption may have on climate. While US Department of Agriculture economists point to a large array of factors contributing to the current constriction in basic food commodities like corn, wheat, and rice, citing regional drought, larger population demand, and increased cost of production because of rising fossil fuel costs, the attention biofuels has attracted means a rough passage for biofuels and may portend badly for their future use.
The Time Magazine article indicts biofuels for “dramatically accelerating global warming” because of clearing of tropical rain forests for cropland for sugarcane, soybeans, or other fuel crops. The article says the US’s increased production of corn for ethanol has caused farmers to plant fewer acres of soybeans. This, in turn, has caused the world-wide commodity price of soybeans to increase, “spurring a dramatic expansion of Brazilian agriculture, which is invading the Amazon at an increasingly alarming rate.” According to Time, deforestation accounts for 20 percent of all current carbon emissions. A Rhode Island-sized area of Brazil was deforested in 2007 alone.
What is most interesting is the intensity of the reaction of UN entities. Concern for food supply has led to what some feel is an overreaction to the role biofuels production may play, as compared to drought, cultivation and transportation costs, and demand. The UN’s Special Rapporteur for the Right to Food Jean Ziegler has warned that the world is headed “towards a very long period of riots” and conflict stemming from food shortages and price increases. He went on to say that in recent months, rising food costs have sparked violent protests in Cameroon, Egypt, Ethiopia, Haiti, Indonesia, the Ivory Coast, Madagascar, and Mauritania. In Pakistan and Thailand, army troops were deployed to prevent seizure of food from fields and warehouses, while price increases led to a general strike in Burkina Faso. Ziegler called on the International Monetary Fund to change its policies on agricultural subsidies and to stop supporting programs aimed exclusively at debt reduction. He went on to say that “international market speculation on food commodities must cease.”
While Mr. Ziegler’s views may represent an extreme in the current food debate, both he and Time Magazine raise (and at the very least exemplify) issues about biofuels development that must be addressed in the coming months if the promising role biofuels may play in addressing climate, security, and oil dependence is to be realized.
The first is question of whether US biofuels production is causing world food prices to rise dramatically. World Bank President Robert Zoellick seems to thinks so. At a news conference on April 11, he said that demand for ethanol and other biofuels is a "significant contributor" to soaring food prices around the world. The World Bank has projected that food prices will stay high or go even higher over the next couple of years, with biofuels a major factor in keeping them high. "Biofuels are no doubt a significant contributor," Zoellick says. "It is clearly the case that programs in Europe and the United States that have increased biofuels production have contributed to the added demand for food."
The second question that has been raised is whether the impact of biofuels on the environment may outweigh their benefits. In addition to Time’s concern about global warming, just last week the U.S. Environmental Protection Agency (EPA) felt compelled to address these impacts after a period of relatively benign acceptance of biofuels’ potential environmental impacts. Among the issues are the increased impacts of nitrogen compounds on the environment stemming from use of nitrogen-based fertilizers and higher nitrogen emissions compared to conventional gasoline. According to Inside EPA, “adding to the concern is the expanded renewable fuels standard (RFS) that Congress included in the recently enacted energy law, which boosts the prior RFS of 15 billion gallons by 2012 to 36 billion gallons by 2022.”
We will address the food-or-fuel issue in future blogs, including the promise of fuel from cellulosic ethanol production, favored by the President and leading environmental organizations alike. Cellulosic ethanol feedstocks, such as pine slashings and switchgrass (the fast-growing plant made famous in the President’s State of the Union two years ago), do not directly compete in food markets. The promise of cellulosic ethanol remains bright, as organizations such as 25X25 have recently begun to reemphasize.
