As soon as Mass v. EPA was handed down on April 2nd, the industries most responsible for global warming pollution did some impressive intellectual contortions trying to show that the case actually supported them in other global warming lawsuits. Last month, we reported on the auto industry’s “silver lining” argument that Mass v. EPA supported their defense against in a nuisance claim brought by California. The electric power industry, which is defending itself against a nuisance claim in the Second Circuit, made a similar argument in this letter to the court, dated April 4th.
The electric power industry said that Mass v. EPA bolsters the idea that the regulation of greenhouse gases is a non-justiciable political question. (This is what a district court held in its September 2005 ruling, Connecticut v. American Electric Power Co. 406 F.Supp.2d 265 (S.D.N.Y. 2005).) Moreover, the defendants said that Mass v. EPA, in holding that greenhouse gases are within the scope of the Clean Air Act, supports their argument on the merits that the Clean Air Act displaces federal common law on this issue.
The state plaintiffs responded a week later with their own letter. The states argued, convincingly we think, that Mass v. EPA actually works to the advantage of the states seeking greenhouse gas reductions. First, the plaintiffs point out that Mass v. EPA resolves the standing question solidly in their favor, and that the Supreme Court “specifically determined that the case before it did not constitute a political question.” Moving to the merits, the states note that there is no guarantee that the EPA will in fact take action on greenhouse gases. The Supreme Court explicitly stated, “We need not and do not reach the question whether on remand EPA must make an endangerment finding…. We hold only that EPA must ground its reasons for action or inaction in the statute.” Thus a decision that federal common law has been displaced by statute is premature. (We’ve noted before that EPA appears to be in no hurry to decide the endangerment question.)
The parties’ briefs in the case are available here (scroll down to the bottom of the page.)
The Second Circuit heard oral arguments in the case almost a year ago. No word yet on when they’ll issue a ruling.