Administration backs utilities in climate case

By Steven Mufson
Friday, August 27, 2010

The Obama administration sided with major utility companies in a Supreme Court case about climate change on Thursday, angering environmentalists who say that the administration's broad argument could hurt their ability to force reductions in greenhouse gas emissions or even to bring other lawsuits.

Administration officials said the Environmental Protection Agency's regulatory moves to restrain carbon dioxide emissions made the lawsuit unnecessary, and the acting solicitor general asked the Supreme Court to return the case to the U.S. Court of Appeals for the 2nd Circuit.

But environmentalists said that the administration had talked about - but not imposed - limits on emissions from existing power plants.

Moreover, environmental groups said, the government's brief went beyond that, employing arguments that threatened to undercut a basis for legal action that have been used for a century, since Georgia sued over damage a Tennessee copper smelter was inflicting on Georgia's forests.

"We're very angry and very disappointed that they would take this tack," said David Doniger, policy director of the climate center at the Natural Resources Defense Council.

An administration official, speaking on the condition of anonymity, replied that the EPA has been taking "a series of regulatory actions indicating that it's moving forward on greenhouse gases and really making it inappropriate for the courts to step in and take on this issue."

The case dates to 2004, when eight state governments, the city of New York and three land trusts sued the Tennessee Valley Authority and five other utilities burning fossil fuels to generate electricity. The plaintiffs said the utilities' greenhouse emissions posed a "public nuisance" because they contributed to climate change. They asked the court to order the utilities to reduce emissions "by a specified percentage each year for at least a decade." Although they lost in district court, a two-judge panel of the 2nd Circuit ruled in their favor on Sept. 21, 2009.

The administration has weighed in on behalf of the TVA, a federal agency. Acting Solicitor General Neal Katyal argued that the EPA was using its authority to regulate carbon dioxide under the Clean Air Act, an authority it won in a case decided in April 2007. He said that the agency's actions since the 2nd Circuit ruling last year had changed the situation. He cited fuel-efficiency standards, an EPA finding that carbon dioxide posed a danger and initial steps toward regulating emissions at new or rebuilt power plants.

"EPA has already begun taking actions to address carbon-dioxide emissions," his brief said.

"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."

"We're certainly happy with it," said Bill Fang, deputy general counsel for the Edison Electric Institute. He said "the fact that they've taken this position is significant. They could have stayed silent. The fact that they've spoken out is significant, and we're happy about it."

Administration officials said they had no choice and had to submit a brief on behalf of TVA. "It would be inappropriate to read too much about the administration's policy based on this narrow litigation," an administration official said.

Staff writer Juliet Eilperin contributed to this report.

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