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The Sept. 21 editorial “Regulating Carbon” correctly noted how “breathtakingly unsuited” it would be for the Environmental Protection Agency to regulate greenhouse gas emissions under the Clean Air Act. Many in Washington recognize that comprehensive greenhouse gas regulation is the only true solution to climate change. The question remaining is: When will the serious work between Senate Democrats and Republicans begin?
That question got more complicated last week when the U.S. Court of Appeals for the 2nd Circuit, in Connecticut v. American Electric Power Company, reversed a lower court’s decision dismissing lawsuits brought by states and public interest groups against a number of coal-burning utilities. The plaintiffs had argued that the utilities’ emissions were creating a nuisance by causing global warming. The lower court’s most significant ground for dismissal was that regulation of greenhouse gases is a “political question” being resolved by Congress and the Obama administration.
But the appeals court said that the lawsuits should proceed. Not only will the lower court be charged with determining what damages have been created by the utilities; it might also be required to allocate responsibility for those damages among the multiple defendants. Litigating even a relatively straightforward dispute between two parties over who polluted a site can cost millions of dollars.
Unless the Connecticut reversal is overruled, numerous businesses in the 2nd Circuit will be exposed to even more expensive federal nuisance lawsuits. As a partner in a firm specializing in environmental law, I think it would be much better if all that money could be spent helping Congress fashion comprehensive climate change legislation.
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