The Supreme Court’s decision against the use of common law “nuisance” suits has put the question of greenhouse gas emissions control back into the political forefront. Amidst heated partisan debates over the debt ceiling, the White House and Congressional Democrats have found themselves in a challenging position, uncomfortable with their public support for forthcoming EPA but legally bound to a rulemaking schedule that culminates in 2012. Today’s GR Energy and Climate Brief examines the political implications of the Supreme Court ruling.

Monday’s decision by the Supreme Court against the use of common law “nuisance” suits brings the question of greenhouse gas emissions control back into the political forefront, even as Congress struggles to hammer out a budget deal and how to address the debt ceiling crisis. This puts the White House and Congressional Democrats in a challenging bind as they are uncomfortable with the level of public support for forthcoming EPA rules as well as voters’ concerns over jobs and the economy, but are legally bound to a rulemaking schedule that culminates in 2012. Today’s GR Energy and Climate Brief examines the political implications of the Supreme Court ruling, particularly the battle underway in Congress centering on whether to push forward or block EPA emissions control efforts.

No Appetite on the Court for Nuisance/Public Trust Cases on Emissions: The ruling (8-0, with Justice Sotomayor abstaining) was a definitive backing of the EPA’s authority and obligation to regulate greenhouse gas emissions under the Clean Air Act. To those environmental law experts who watch the Court closely, the most significant aspect of the decision was that it was written by Ruth Bader Ginsberg, perhaps the most liberal member of the Court, which indicates that there is no appetite even among the liberals on the Court for holding utilities liable through nuisance suits.

Key Judicial Questions Left Open: The judicial route on emissions control has not been closed off entirely, however. The Court was divided on whether the states have standing to bring emissions cases to Court on behalf of the public, upholding the ruling of the lower court with a 4-4 split, which means the question may be revisited in the future. By maintaining the states’ standing to bring suits, should the EPA not move forward with regulation, the door is left open for nuisance lawsuits. The other outstanding issue is assigning specific responsibility for emissions impacts. The government and AEP argued that global-warming stands apart from typical environmental cases because the particular source of problems generated by global warming is generally unknowable. Since these problems are caused by the externalities of many different actors’ activities, courts are unable to assign liability to specific defendants. However, the Court decided in this case not to rule on this question at all, leaving it open for another round of review down the road.

EPA Bound By Legal Deadlines on GHG Rulemaking: EPA air quality officials argued to GR that the EPA is ready to implement the GHG rules so that they can be finalized by the legally imposed deadline of May 2012. However, already this year, they have delayed rules on Greenhouse Gas for Power Plants, the Industrial/Commercial Boiler Rule, and Federal Air Quality Standards.

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