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Should Courts or EPA Regulate Greenhouse Gases?

April 19, 2011 at 12:00 AM EDT
The Supreme Court heard arguments Tuesday stemming from a 2004 lawsuit over whether the Environmental Protection Agency has the authority to regulate greenhouse gas emissions. Gwen Ifill speaks with the National Law Journal's Marcia Coyle about the case, the arguments and the justices' reactions.

GWEN IFILL: We now turn to today’s Supreme Court arguments. The topic was climate change, not about what causes it but who’s responsible for regulating its effects.

Environmental groups say today’s case could make all the difference in the fight against global warming.

DAVID DONIGER, Resources Defense Council: Why are we suing the five biggest power companies? Because that’s where the carbon pollution is.

GWEN IFILL: David Doniger, director of climate policy at the Natural Resources Defense Council, has joined six states, the city of New York, and three land trusts to force five of the nation’s largest electric companies to cut their emissions.

The utilities own or operate 174 fossil-burning power plants in 20 states. Together, the states say they produce 650 million tons of carbon dioxide emissions a year. But the energy companies say they have been unfairly targeted.

Ed Comer represents the industry’s largest trade group.

EDWARD COMER, Edison Electric Institute: We do think it’s unfair. We think it’s inappropriate. I mean, if you’re going to try to solve the problem, you need to do it comprehensively. You can’t — you really have no real impact if you just pick and choose a couple of emitters and ignore everybody else.

GWEN IFILL: The lawsuit, originally filed in 2004, argues that carbon dioxide-driven global warming has eroded beachfronts, caused stronger storms and wildfires and increased health risks stemming from severe heat waves and smog.

But the case before the court is not a debate over climate change, per se. The companies acknowledge it exists and even their contributing role. They’re arguing, instead, that a court-imposed solution that requires a 3 percent reduction in emissions over the next 10 years could hurt businesses that depend on fossil fuels.

EDWARD COMER: We’re very concerned that if you had individual courts setting standards without any real guidance as to how to balance all of the competing factors, there’s going to be tremendous amount of uncertainty as to what we should do and inconsistency. And that’s not good for business. It’s not good for our business. And it’s not good for our customers or for the economy.

GWEN IFILL: The flip side of that argument? New standards would actually create jobs.

DAVID DONIGER: We would be retiring some of the older plants and building a lot of new ones. And some of the companies have said they have got billions of dollars ready to invest once they know what the ground rules are.

GWEN IFILL: This is only the second time such an argument has made its way to the high court. In 2007, it ruled that the Environmental Protection Agency should regulate greenhouse gases under the Federal Clean Air Act.

The EPA has since set restrictions on tailpipe emissions from automobiles but not from power plants. New guidelines are scheduled to be announced this summer and take effect next year, but that’s too long say environmentalists, who want the courts to act.

DAVID DONIGER: The EPA is supposed to be curbing this pollution. And we hope they will, but they haven’t done it yet. The states have the right to sue the polluters directly if the EPA doesn’t do its job or is blocked by Congress from doing its job. This is the last resort.

GWEN IFILL: The utilities don’t see it that way.

EDWARD COMER: This case comes down to one very simple principle: Who writes the laws in the United States? Is it Congress, with the approval of the president, or is it done by individual courts? And I think it’s very simple. Congress and the president write the laws. We all learned that in our elementary school civics classes.

GWEN IFILL: A ruling in the case is expected this summer.

Marcia Coyle of “The National Law Journal” was in the courtroom for today’s arguments and as always joins us now.

MARCIA COYLE, “The National Law Journal”: Hi, Gwen.

GWEN IFILL: Marcia, this is one of those interesting cases where the administration seems to be arguing against its own policy.

MARCIA COYLE: That is true.

The administration today, Acting Solicitor General Neal Katyal told the court basically — and this is also part of the utilities argument — that EPA, the Environmental Protection Agency, has begun to take steps to regulate greenhouse gases. And Congress gave EPA the authority and the role to do this. Congress also created a procedure, a process that states and anyone else can participate in when EPA regulates, and that’s where it should stay.

The utilities’ lawyer, Peter Keisler, told the court that letting this nuisance suit go forward would really involve the courts in making the kinds of policy choices that really are reserved to the executive and legislative branches.

And so most of the justices’ questions today revolved around, how does a district court judge who gets a case like this, how does that judge manage it? How does the judge weigh costs and benefits, as Chief Justice Roberts said? And isn’t this a very heavy burden to put on a district court judge, a case that involves something that is global in nature or, as Mr. Katyal said for the government today, a situation, a phenomenon, global warming, that has millions of perpetrators and millions of victims?

GWEN IFILL: So, this was more about jurisdiction than it was about ideology?

MARCIA COYLE: Oh. Oh, definitely, it is.

It really boils down to separation of powers. Is the court the proper place to deal with it, or is it — as you said in your setup piece, is it the executive or legislative branch that should deal with it?

GWEN IFILL: You used the word nuisance suit, which doesn’t sound like a good thing.

How was it…


GWEN IFILL: How was it applied in this case?


A public nuisance is a very old, well-established legal doctrine that gives states the right to go into federal court when the public welfare, health, property have been threatened or actually damaged. And the states in this case are saying they’ve alleged some concrete harms from global warming that they say the utilities have contributed to: rising sea levels that are eroding beaches, the destruction of hardwood forests, lower water in the Great Lakes.

These, the states claim, are concrete harms that they have a right to go into federal court and seek a remedy for.

GWEN IFILL: Did the — the give-and-take between the justices and the people who were arguing in front of them, did it fall along the normal left-right, 5-4 line?

MARCIA COYLE: No, it did not. In fact, at the end of the argument, it was rather hard to see where the states may find support, although, as I have often said, you don’t want to predict on the basis of oral arguments.

But the justices, I think, saved their toughest questions for the states’ attorney, New York Solicitor General Barbara Underwood. And that’s where they really drilled down into how does a — how does a federal judge handle this suit?

Justice Ginsburg said that federal judges don’t have the resources or the expertise that EPA has, and aren’t you setting up the judge as a super-EPA? And Justice Kagan said this seems the kind of things that agencies are meant to do, not courts.

And General Underwood said that, basically, the states are asking the court to do — courts to do what they normally do in public nuisance suits. And that is, here, they want, very simply, an order from the court to the utilities to abate their emissions and to have that informed by available technology, and the utilities know what they have to do.

GWEN IFILL: Justice Sotomayor is not part of this case, which raises — explain why.


GWEN IFILL: But it also raises the possibility, if they weren’t all coming down against the states today, of a 4-4 split.


Justice Sotomayor actually sat as a federal appellate judge on the panel that heard this case before it came to the Supreme Court. It was a three-judge panel. When she was nominated, she did not participate then in the panel’s decision. But because she was involved in the case at that level, she recused herself from it today.

It does set up the possibility, whenever there are eight justices, of a 4-4 split. If that were to happen here, the states would basically win, because a split like that leaves the lower court judgment in place, and the states won in the lower court.

GWEN IFILL: The court did rule on an environmental case similar to this in 2007 involving the EPA’s jurisdiction. Why does that not supersede this case we see here today? How is it different?

MARCIA COYLE: Well, the utilities and the government claim it’s different because there the states were suing under the Federal Clean Air Act. It was a statutory interpretation case, where this is a very different — it’s a public nuisance lawsuit. There’s no statute being challenged or interpreted here.

However, it does play a role, according to the states, because the states had to climb over a big obstacle when it sued the EPA back in early 2000. And that is to show that they had the right to go into federal court. And Justice Kagan pointed out that was a tougher obstacle than it is here, and why isn’t it enough that the states have shown that they have a concrete injury and they should be able to go into federal court?

GWEN IFILL: Fascinating.

Marcia Coyle, as always, thank you so much.

MARCIA COYLE: My pleasure.