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Howard Learner

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The Supreme Court's AEP Decision: Snatching Climate Change Solutions Victory from the Jaws of Defeat

Posted: 06/28/11 06:27 PM ET

In today's politically polarized environment, legislative and judicial actions tend to be characterized as either stunning victories or crushing defeats. The media reporting and hyperbolic press releases on the U.S. Supreme Court's recent decision in American Electric Power, et al. v. Connecticut, et al. (AEP) involving actions to reduce greenhouse gas pollution reflects this trend. Certainly, the U.S. Chamber of Commerce is correct in declaring victory on the Court's holding that the Clean Air Act displaces federal common law claims asserted by states and other plaintiffs seeking to limit carbon dioxide pollution from coal plants. However, the Court's decision and its future impacts are much more nuanced and hopeful for environmental progress. There is much victory to be snatched from the jaws of the generally expected defeat on the federal common law displacement issue.

First, the Supreme Court reaffirmed its landmark Massachusetts v Environmental Protection Agency (Mass v EPA) decision by an 8-0 vote, or at least 6-2 after reading the peculiar "assuming" controlling precedent concurrence of Justices Alito and Thomas. Justice Ginsburg's opinion for the full Court provides stability and further legitimacy, and it makes certiorari petitions to re-examine Mass v EPA almost frivolous. Chief Justice Roberts and Justice Scalia joined with the justices who formed the majority in Mass v EPA in following stare decisis principles (which, of course, apply to other 5-4 decisions that they favor as well).

The Court has embraced stability amidst Congress' politically supercharged debate on climate change solutions: "Massachusetts made plain that emissions of carbon dioxide qualify as air pollution subject to regulation under the [Clean Air Act]. And we think it equally plain that the Act 'speaks directly' to emissions of carbon dioxide from the defendants' [coal] plants."

The clear message to critics seeking to reverse or undermine Mass v EPA through a post-Roe v. Wade type of destabilizing approach: quit screwing around, we've decided the core issue of the EPA's Clean Air Act authority to set greenhouse gas pollution reduction standards. The Supreme Court is not a friendly forum to reverse Mass v EPA. Forget about trying to get Justice Kennedy's vote -- and, probably, Justice Roberts' and Scalia's votes as well -- for challenges that undermine the integrity and legitimacy of the Court's substantive ruling in Mass v EPA. Justice Sotomayor, who recused herself from this particular case, would very likely vote with the Mass v EPA majority.

Second, the Court sent a strong message to the D.C. Circuit where polluters and trade associations have filed multiple appeals of the EPA's greenhouse gas standards: courts should accord Chevron deference to Congress' "designated expert agency, here, EPA," which is applying its "scientific, economic and technological" expertise to decision making.

The fate of businesses' appeal of the EPA's science-based finding that greenhouse gas pollution "endangers" public health is sealed -- courts should defer to EPA's scientific and technical expertise. Likewise, the prospects appear dim for appeals of EPA's "tailpipe rule" addressing pollution from cars and trucks.

Appeals of EPA's "tailoring rule," which phases-in greenhouse gas standards by starting first with the very largest polluters (e.g., coal plants, oil refineries, cement kilns) and then moving next to mid-sized polluters, are weakened by the AEP decision. The Court's expressed standard of deference to EPA's decisionmaking expertise provides strong support for EPA's administrative practicality and necessity approach of phasing-in Clean Air Act implementation for greenhouse gas pollution reduction by sensibly starting with the "biggest dogs" first. The Court specifically recognizes that, under §7411(b)(2) of the Act, "EPA may 'distinguish among classes, types, and sizes' of stationary sources in apportioning responsibility for emissions reductions." Finally, even though the Court's decision does not directly touch the "timing" issue raised in another appeal, it's hardly promising for the appellants.

In short, the AEP decision puts a heavy brick on these appeals and speeds up EPA's regulatory implementation process by making the business appellants' inevitable certiorari petitions and stay and delay requests pending appeal unpersuasive. The Court has not shut the door on challenges to EPA's standards, but has clearly made appeals more difficult. Message to all: We've made up our minds on the EPA's authority to regulate this pollution under the Clean Air Act -- there are not five votes upstairs to undermine Mass v. EPA.

Third, AEP upholds Article III standing for "at least some plaintiffs," which include several States, New York City and private land trusts. The four votes for standing in Mass v EPA held strong in AEP, and Justice Sotomayor is almost certain to agree in future cases. The Court declined to follow the "prudential standing" limitations advocated by the Justice Department. The AEP decision expressly opens the door for private land trusts, environmental groups and other parties to assert standing. That issue will now be adjudicated before lower courts, and litigants will structure their cases most favorably to support standing claims and develop the case law.

Fourth, AEP expressly leaves open state common law nuisance actions and remedies: "None of the parties have briefed preemption or otherwise addressed the availability of a claim under state nuisance law. We therefore leave the matter open for consideration on remand." The Court cites helpful precedent stating that the federal Clean Water Act does not preempt state common law nuisance actions. Whether state common law tort damage actions are preempted or not by the Clean Air Act will next be adjudicated by the Ninth Circuit in the pending Kivilina v. ExxonMobil case and, perhaps, on remand in the AEP case if the plaintiffs decide to advance state law claims included in the original lawsuit.

The Fourth Circuit found preemption in reversing a district court's ruling that state nuisance law could compel the TVA to clean up specific power plants to specific levels by specific times, but that decision is not controlling in other circuits or state courts. There are complex constitutional issues if the Clean Air Act is construed to preempt and abrogate state common law nuisance and other tort damages remedies without providing an economic quid pro quo value (Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59 (1978)).

Fifth, the AEP decision should provide strong caution to some in Congress who are seeking to take away EPA's jurisdiction to set carbon dioxide pollution reduction standards under the Clean Air Act. If that withdrawal of EPA jurisdiction were to become law, under AEP's logic, then federal common law claims would be reinvigorated. There are also separation of powers issues if Congress sought to both constrain federal common law remedies and withdraw EPA jurisdiction. In short, opponents of climate change solutions can't have it both ways.

As the post-decision spin control and headlines are behind us, the Court's AEP decision will likely allow more solutions than impose obstacles and problems in advancing overall public policy support for climate change progress. The Court has reinforced the legitimacy of Mass v. EPA, stabilized it and emphasized judicial deference to EPA's scientific, economic and technological expertise and judgment in ways that deter sidetracking appeals and create room to advance important solutions. The Court has left more doors open than closed on issues for lower courts to decide. The Court has sent green lights, not red lights, to plaintiffs to craft pleadings, shape issues and choose cases and forums wisely.