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June 20, 2011

EPA, Not Federal Courts, Can Limit CO2 Emissions

Clean Air: Supreme Court ruling is a victory for utilities, environmentalists

Cheryl Hogue

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Federal courts cannot set limits on carbon dioxide from power plants in response to lawsuits claiming that this pollution causes negative health effects and environmental damage, the U.S. Supreme Court ruled today. Regulating CO2 is a job Congress reserved for the Environmental Protection Agency under the Clean Air Act, the court found.

The high court sided with five large utilities in a suit brought by several states and three nonprofit land trusts over the facilities' emissions. The utilities--American Electric Power Co., Southern Company, Xcel Energy, Cinergy Corp., and the Tennessee Valley Authority--together release about 650 million tons of CO2 per year. That's a quarter of the CO2 emissions from the U.S. electricity-generating sector.

Environmental groups claimed victory in the court's 8-0 ruling. "The Supreme Court strongly underscored EPA's responsibility under the law to address climate pollution that threatens the health and well-being of our nation," said Fred Krupp, president of the Environmental Defense Fund.

In the original case, California, Connecticut, Iowa, New York, Rhode Island, and Vermont claimed that the utilities' emissions put health, public lands, and infrastructure at risk due to climate change. Two other states initially in the suit, New Jersey and Wisconsin, dropped out of the litigation.

The states and land trusts asked a federal trial court to cap each utility's CO2 emissions and lower these limits every year for a decade. After the trial court dismissed the suit, the U.S. Court of Appeals for the Second Circuit, based in New York, determined that the case could continue until EPA finalizes regulations that will limit CO2 emissions from utilities. Under an unrelated court settlement, EPA is to propose such emission controls this year and finalize them by May 2012.

The utilities appealed the Second Circuit ruling. The Supreme Court heard the appeal this past April.

Writing for the high court, Justice Ruth Bader Ginsburg said, "Congress delegated to EPA the decision whether and how to regulate carbon dioxide emissions from power plants." This means federal courts can't establish emission caps for utilities in response to claims that CO2 is damaging to health and the environment, the decision said.

Michael Gerrard, director of the Center for Climate Change Law at Columbia Law School, said the Supreme Court left open a key legal issue: whether the Clean Air Act prevents environmental groups or others from suing utilities in state courts, seeking limits on CO2 emissions. Gerrard expects this type of suits to be filed in the wake of the Supreme Court's decision.

Justice Sonya Sotomayor recused herself from the case, American Electric Power v. Connecticut. Before her appointment to the high court, Sotomayor was a member of the three-judge panel in Second Circuit that heard the case, but she was not involved in reaching that court's decision.

Chemical & Engineering News
ISSN 0009-2347
Copyright © 2011 American Chemical Society
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