Department of Justice to States: Don’t Sue Polluters

In a blow to states’ leadership over clean energy, the U.S. Department of Justice has filed a brief before the U.S. Supreme Court arguing that states cannot sue power plant operators that generate pollution. The Justice Department alleges that: (1) the Environmental Protection Agency has already started to regulate greenhouse emissions; and (2) states lack standing to assert a federal nuisance claim.

The brief was filed in connection with litigation where Connecticut and seven other states (New York, California, Iowa, New Jersey, Rhode Island, Vermont, and Wisconsin) as well as New York City sued a group of utilities that emit significant amounts of carbon dioxide. The suit contends that utilities are creating a “public nuisance” through their greenhouse-gas emissions, contributing to global warming, and consequently injuring the states in their capacities as sovereigns or property owners.

States have been able to sue harmful emitters under the nuisance theory since a 1907 Supreme Court decision that required Tennessee copper companies to reduce emissions that were damaging to Georgia farmers’ crops. Should the DOJ’s second legal reasoning of standing be adopted by the courts, the 1907 decision would be trumped and federal nuisance law will not be able to act as backstop against carbon dioxide emissions.

Environmental organizations have criticized the Department’s stance and acknowledge states’ actions to combat climate change in the absence of legislation from Washington DC. Further, they note that although the EPA has adopted regulations to limit greenhouse-gas emissions, the agency has not defined how it expects power plants, factories and other stationary sources to control their greenhouse-gas emissions. Moreover, they point out, EPA’s regulation over greenhouse gas is still not in effect and is only applicable for the largest and newest sources of pollution.

As we have discussed in previous Dispatches, states are often the laboratories where good policies are first created; and clean energy reform is undoubtedly one of them. If the federal government were to prevent states from exercising their authority over environmental policy, this decision could have detrimental effects on further policy innovation at the state level.