DRI filed an amicus curiae brief in the United States Supreme Court in the case of American Electric Power Company, Inc., et al., v. State of Connecticut, et al. The Supreme Court will determine whether the eight states bringing the suit, along with New York City and several environmental nonprofits, can invoke the powers of the federal court to regulate greenhouse gases as public nuisances under federal common law.
In the brief, DRI argues that states and private parties should not be permitted to pursue judicially fashioned emissions caps on utilities for their alleged contribution to climate change.
DRI also questions whether a cause of action to cap carbon dioxide emissions can be implied under federal common law where no statutory remedy exists and when such subject matter is properly regulated by the Environmental Protection Agency (EPA).
The district court judge found that plaintiffs' request for injunctive relief was not appropriate for a judicial proceeding. This decision was later commended by the Obama administration, which argued that the issue is best taken up through legislative action or by the EPA. The second circuit disagreed, holding that federal courts could create standards to limit greenhouse gas emissions and impose those standards on anyone who contributes to global warming.
"Singling out these five utility companies is legally dubious and an ill-suited avenue for tackling global warming issues," said John Parker Sweeney, immediate past chair of the Climate Change Litigation Task Force of DRI. "The Supreme Court's review of this case should reinforce and clarify existing precedent on the appropriate roles for the courts, legislature, and regulatory bodies in climate change issues."
The case is being closely watched by the business community because it will provide decisive guidance on whether politically charged issues such as global warming can be resolved by the judicial branch. In the amicus brief, DRI points out that the four federal trial courts that have faced the issue have all determined that they "lack judicially discoverable and manageable standards for evaluating climate change tort actions."
"Global warming issues, as well as the large majority of other regulatory issues, are best left to the jurisdiction of the regulatory bodies created to handle them," said Mr. Sweeney. "Rather than turning to litigation, the parties should pursue this issue with the Congress or the EPA, at least in the first instance."