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Supreme Court Slaps Down Climate Suit by Attorneys General

Monday, June 20, 2011

The Supreme Court has handed a firm rebuke to eight state attorneys general — including New York's — in a case that touched on climate change and business.

The high court ruled 8-0 that states don't have the power to force power plants in other states to emit less carbon dioxide.

During the George W. Bush's presidency, several states' attorneys general, including New York's Eliot Spitzer, believed federal government wasn't doing enough to stop power plants from belching greenhouse gases into the atmosphere and together decided in 2004 to sue the owners of four polluting power plants.

Since there was no statute on the books, the plants' operators could be accused of breaking, the suit invoked so-called "public nuisance" law.

"They were suing under old doctrines growing out of old England that allowed neighbors to sue each other when they're causing injury to their property," said Michael Gerrard, director of the Center for Climate Change Law at Columbia Law School.

By this reasoning, if a power plant spews carbon dioxide into the atmosphere, it's contributing to climate change, potentially causing havoc for farmers and insurers and many others, and the state can sue to halt the damages.

That logic didn't stand up in court. In an opinion issued on Monday, Justice Ruth Bader Ginsburg wrote the federal government already has authority to regulate greenhouse gases through the Clean Air Act. There can't be a parallel track for states to do the same thing.

But Michael Gerrard, who favors robust regulation of greenhouse gases, said it's not the setback it may seem. He noted that in 2007, the Supreme Court affirmed the Environmental Protection Agency's power to limit greenhouse gases. Then, President Barack Obama took office, ordering the Environmental Protection Agency to write new rules to restrict emissions.

This year, the EPA began issuing regulations on CO2 emissions. Some in Congress want to strip the agency of that power. If that happens, Gerrard predicted, the state Attorneys General will sue again, and they may get a more favorable hearing in court.

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