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Supreme Court wary of empowering judges to order greenhouse gas cuts

A lawsuit asking a federal judge to order big power companies to cut greenhouse gases, because the emissions are a public nuisance, got a skeptical reception Tuesday at the Supreme Court.

By Staff writer / April 19, 2011

NRG Energy's W.A. Parish Electric Generating Station in Thompsons, Texas, which operates natural gas and coal-fired units, is one of the largest power plants in the United States.

David J. Phillip/AP



The US Supreme Court on Tuesday cast a skeptical eye toward a ground-breaking environmental case that seeks to use public nuisance law as a way to force five major power companies to reduce their emissions of greenhouse gases in the fight against global warming.

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In questions from the bench during an extended 80-minute oral argument session, many of the justices expressed concern about using the judiciary to by-pass the approach to greenhouse gases embraced by the Environmental Protection Agency (EPA) and Congress.

Chief Justice John Roberts said litigation against major power companies over global warming raises a wide variety of policy issues, including questions about the potential cost to the US and world economies.

“The whole problem of dealing with global warming is that there are costs and benefits on both sides, and you have to determine how much you want to readjust the world economy to address global warming,” Chief Justice Roberts said. “I think that’s a pretty big burden to impose on a district court judge.”

Rather than waiting for the EPA to issue regulations and begin enforcing them, a coalition of six states and New York City took matters into their own hands. They accused the five power companies of being among the largest greenhouse-gas polluters in the country – contributing to a public nuisance through the emission of 650 million tons of carbon dioxide a year. The states asked a federal judge to order the companies to cap their emissions and develop a plan to systematically reduce their contribution to greenhouse gases.

The issue at the high court is whether the lawsuit should be dismissed or allowed to proceed to trial.

New York Solicitor General Barbara Underwood, representing the suing states, said the greenhouse-gas case could be handled the same way judges have long resolved suits involving public nuisances. The judge establishes facts at a trial, takes testimony from experts, and determines a reasonable remedy, she said.

“This court should not close the courthouse door to this case at the outset,” Solicitor General Underwood said.

Justice Ruth Bader Ginsburg said the suit sought to establish a federal trial judge “as a kind of super EPA.” Asking a judge to cap and monitor plant emissions “sounds like the kind of thing that EPA does,” she said.

Several justices noted that the EPA has begun regulating emissions of greenhouse gases. The agency has authority under the Clean Air Act and has opted to proceed on an incremental basis, focusing first on certain motor vehicles and pledging to regulate fixed sources of carbon dioxide, such as power plants, next year.


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