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David Doniger - Supreme Court to Hear Case Against Nation's Biggest Carbon Polluters

The Supreme Court will hear challenges by America’s biggest power companies to a landmark appeals court ruling in Connecticut v. American Electric Power that they can be sued to curb their emissions of carbon dioxide, the main cause of global warming. 

Four coal-burning power companies – American Electric Power, Southern Company, Duke Energy, and Xcel Energy – want the Supreme Court to shut the courthouse doors on federal “nuisance” suits to curb carbon pollution.  The Solicitor General, representing the Tennessee Valley Authority, says that states and others hurt by companies’ carbon pollution should be forced wait for the possibility that EPA may someday curb those emissions under the Clean Air Act. 

The appeals court, however, relying on a century of Supreme Court precedents on states’ rights to relief from interstate air and water pollution, held that federal courts can curb the companies’ carbon pollution unless and until the EPA actually regulates the emissions from their existing power plants.

When the case is heard next year, the states and other plaintiffs will press the Court to keep the courthouse doors open until and unless the executive branch actually protects the American people by setting Clean Air Act standards that curb the emissions of existing plants.  To date, EPA has made no definite commitment to do so.

EPA’s “BACT” requirements taking effect in January will not reduce carbon pollution levels from existing power plants.  BACT addresses only increases in carbon pollution from new and expanded sources.  EPA has the duty to issue performance standards reducing the existing power plant’s carbon pollution, but has not yet acted. 

With some in Congress attacking EPA and the Clean Air Act, the federal courts are more important than ever to protect the health and welfare of millions of Americans put in danger by these power companies’ enormous carbon pollution. 

The Second Circuit Court of Appeals held in 2009 that the nation’s five largest polluters can be sued in federal court to reduce the 650 million tons of carbon dioxide emissions they release each year – pollution that contributes to rising temperatures and to deaths, illnesses, and environmental damage from killer heat waves, more dangerous smog levels, more droughts and forest fires, more flooding from rising sea levels and stronger storms, and many other impacts. 

NRDC will continue to help represent two plaintiffs in the case – the Open Space Institute of New York and the Audubon Society of New Hampshire.  They are private conservation land trusts with coastal property that will disappear if sea levels keep rising.  The case will likely be briefed, argued, and decided by next June.

Justice Sotomayor did not participate in the Supreme Court’s decision to hear the case.  She was a member of the Second Circuit panel that heard the case, but she did not join the opinion which was issued after her elevation to the Supreme Court.  Looking ahead, should there be a 4-4 tie decision, the Second Circuit decision would remain in effect.

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