The Administration’s argument for trying to shut down a public nuisance lawsuit against the nation’s top greenhouse gas emitters is “an industry argument,” according to the co-lead counsel in the case, and has been contradicted by opinions of past Democratic Administrations.

This week, the Solicitor General asked the Supreme Court to vacate a ruling from the Second Circuit Court of Appeals that would have allowed the case, AEP v. Connecticut, to go forward. The ruling would have allowed the case, brought by 8 states, the city of New York and 3 public land trusts, to go forward, and force five of the largest coal-fired power plants in America to reduce their greenhouse gas emissions. The Second Curcuit reinstated the case in September 2009, after an earlier ruling from 2006 threw the case out.

In a brief (pdf) filed yesterday on behalf of the Tennessee Valley Authority, acting Solicitor General Neal Katyal agreed with the defendants, saying that U.S. EPA’s newly finalized regulations on greenhouse gases have displaced that type of common-law claim.

Katyal urged the court to vacate the decision and remand the case to the 2nd Circuit for further proceedings, this time taking into account the administration’s push to regulate greenhouse gases under the Clean Air Act.

The 2nd Circuit’s decision rested on the assertion that “EPA does not currently regulate carbon dioxide,” but that has since changed. The Obama administration has finalized several regulations in response to the Supreme Court’s 2007 decision in Massachusetts v. EPA, which told the agency to decide whether greenhouse gases were pollutants under the Clean Air Act.

Environmental groups reacted with alarm at the decision by the Obama Administration to side with the polluters (more reaction here and here). Matthew Pawa, the co-lead counsel in the case, said the argument basically boiled down to “Trust us, we’ll get to it, if we happen to get re-elected…. Talk is cheap, it’s enough. Enough hot air.”

One of the two arguments that the Solicitor General made in their brief was that the EPA has changed their policies and made regulatory changes to deal with GHGs. However, Pawa notes that the EPA has not yet made those regulatory changes for existing coal-fired power plants, just for new ones. This case concerns current emitters. “All of the other regulations that EPA has done, on fuel efficiency, on new power plants, everything else is irrelevant,” Pawa told FDL News. . . .

The other argument, which could be more damaging, concerned “prudential standing” and questioned whether the plaintiffs had the legal right to bring the case. That’s even more dangerous and would have all sorts of bad consequences for states and local governments being able to sue.

The ultimate question, well-put in this post by the Constitutional Accountability Center, concerns whether the EPA regulations and public nuisance lawsuits can work in concert or in opposition.

The case at issue is American Electric Power (AEP) v. Connecticut, in which a coalition, led by the State of Connecticut, turned its frustration with Washington’s failure to regulate greenhouse-gas emissions into a common-law nuisance action against several of the nation’s largest electric utilities. Under the nuisance principle—one of the oldest in English common law—a property owner may ask the court to stop a defendant who is interfering with the owner’s enjoyment of his own property and, in some circumstances, to force the defendant to pay damages. In the Connecticut case, the plaintiffs thus sought to persuade the court to order the utility companies to reduce their greenhouse-gas emissions by showing how such gases cause global warming, which in turn was creating increased temperatures, alternating drought and floods, destruction of natural habitats, and corresponding decreases in property values and human health and welfare. […]

The Second Circuit’s decision relied on the fact that the “EPA does not currently regulate carbon dioxide,” but that has since changed. As Acting Solicitor General Katyal wrote in yesterday’s Supreme Court brief, “Since this court held [in Massachusetts v. EPA] in 2007 that carbon dioxide falls within that regulatory authority, EPA has taken several significant steps toward addressing the very question presented here….That regulatory approach is preferable to what would result if multiple district courts—acting without the benefit of even the most basic statutory guidance—could use common-law nuisance claims to sit as arbiters of scientific and technology-related disputes and de facto regulators of power plants and other sources of pollution both within their districts and nationwide.”

However, this has not always been the prevailing view. During the Carter Administration, the state of Illinois sued the city of Milwaukee for dumping sewage into Lake Michigan. Despite the fact that the EPA had authority over the issue and regulated by issuance of permits, the Carter Administration’s amicus brief supported the right for public nuisance lawsuits in this area as complementary to the EPA’s mission.

Consistent with its overriding responsibility for the environment ( Sanitary District v. United States, 266 U.S. 405, 425-426 (1925)), the United States itself has repeatedly relied upon the federal common law of nuisance in addition to various statutory remedies as part of its efforts to prevent and remedy the pollution of this country’s natural resources […] Furthermore, given the limited resources of the Environmental Protection Agency and the Department of Justice, achieving the national goal of “restor[ing] and maintain[ing] the chemical, physical, and biological integrity of the Nation’s waters” (33 U.S.C. 1251(a)) depends in large measure on the continued effectiveness of state and private enforcement actions under appropriate federal statutes, state law, and the federal common law. Accordingly, resolution of the issues posed by this case will have a direct impact on the programmatic and enforcement interests of the United States.

In the brief, written by then-Solicitor General Wade McCree, the public nuisance lawsuit “will not in any way disrupt implementation or administration” of the Environmental Protection Act. Clearly, at the time, the Carter Administration saw those lawsuits as complementary to the EPA’s mission. In fact, McCree wrote that “until such time as Congress acts definitively, the federal common law may well be the only substantial source of protection against interstate pollution.” Since EPA hasn’t yet regulated existing power plants, this is a near-perfect analogue.

The Administration has maintained that they had to act because they needed to step in on behalf of the Tennessee Valley Authority, one of the defendants. But “the TVA is a notorious environmental bad boy,” Pawa said. “Even the EPA has sued the TVA. The Solicitor General is supposed to represent the United States, instead of representing one polluter. The Administration has gone out on a legal limb to help a greenhouse gas polluter. We feel betrayed. Stabbed in the back.”

The plaintiffs need to respond with their own brief by October 4th. The Supreme Court could either refuse to take the case, or remand it back to the 2nd Circuit, taking into account the Solicitor General’s arguments.