News Article

WASHINGTON, D.C.—Today, the United States Supreme Court unanimously held that the Clean Air Act, and the Environmental Protection Agency rulemaking action the Act authorizes, displaces  federal common law public nuisance claims brought by several states, the City of New York, and three private land trusts. These plaintiffs sought to use federal common law to regulate greenhouse gas emissions by four private power companies and the Tennessee Valley Authority. In an 8-0 decision, the Supreme Court ruled that such regulatory authority rightfully rests with the EPA, an agency with the experience to consider myriad scientific, economic and technological issues inherent in the “climate change” debate.
 

Womble Carlyle attorneys John Parker Sweeney, T. Sky Woodward and Kevin B. Mattingly represented DRI – The Voice of the Defense Bar in its “friend of the court” brief to the Supreme Court. Sweeney, Woodward and Mattingly argued that capping carbon dioxide emissions is not an appropriate role for the courts, and should be handled by the executive and legislative branches. DRI’s position was affirmed in the 8-0 decision (Justice Sotomayor did not participate in the decision). The case is American Electric Power Company, Inc., et al. v. Connecticut, et al.

In an opinion written by Justice Ruth Bader Ginsburg, the Court rejected the plaintiffs’ attempt to secure from the federal courts decrees setting carbon-dioxide emissions levels for each defendant at an initial cap with annual reductions, reasoning that the Court’s recent decision in Massachusetts v. EPA made plain that emissions of carbon-dioxide qualify as air pollution subject to regulation under the Clean Air Act, and that the Clean Air Act “speaks directly” to emissions of carbon dioxide from the defendants’ plants. The Court said that the Clean Air Act provides the plaintiffs’ sole source of remedy, namely, awaiting a potential failure by the EPA to set satisfactory emissions limits for carbon-dioxide from fossil-fuel fired power plants (rulemaking the EPA has agreed to complete by May 2012), petitioning for a rulemaking on the matter, and seeking review of EPA’s response in the federal courts. Clients should take comfort in the AEP v. Connecticut opinion, insofar as it reinforced a process – administrative rulemaking – to which businesses have adapted over many decades. The Court supported what DRI argued: States and activist parties must urge their positions before the EPA by way of rulemaking, then seek judicial review of the EPA's actions.
 

 

This is the second friend of the court brief that Woodward and Sweeney have authored for the U.S. Supreme Court in the past two years. In 2009, they authored an amicus curiae brief in support of the Petitioners in Otis T. McDonald, et al. vs. The City of Chicago, et al. This landmark civil rights case held that the fundamental, individual right to keep and bear arms, as guaranteed by the Second Amendment, is a right afforded to citizens of every state, through Fourteenth Amendment incorporation.