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Obama administration leaves climate change to Congress, not the courts

The stance on a suit seeking limits on pollution from coal-fired power plants has disappointed environmentalists. The case is being watched as a test of whether producers of greenhouse gases can be sued.

September 18, 2010|By David G. Savage, Tribune Washington Bureau

Reporting from Washington — Environmentalists say they are surprised and disappointed that the Obama administration is urging the Supreme Court to kill a major global warming lawsuit that seeks new limits on carbon pollution from coal-fired power plants.

At issue is a deep dispute over how best to fight climate change: through new government rules only or through lawsuits against polluters.

Though the administration seeks new limits on carbon pollution from Congress or through the Environmental Protection Agency, it says courts should step aside. But some environmentalists call this one-track approach shortsighted and a mistake.

Environmentalists last year won a major victory in the U.S. Court of Appeals in New York in a global warming suit brought on behalf of eight states, including Connecticut and California. It sought new limits on greenhouse gases from power plants throughout the Midwest and South.

But late last month, the Obama administration joined the case on the side of the utilities and said the suit should be dismissed. The brief by Acting U.S. Solicitor Gen. Neal Katyal argued that the plaintiffs, including the states, do not have standing to sue and that global warming is suited to "political or regulatory — not judicial — resolution."

Environmentalists say they were caught off guard.

"We were surprised and disappointed," said David Hawkins, a climate change expert at the Natural Resources Defense Council. "We thought this was unnecessary and uncalled for. They have adopted new rules for automobiles, but that leaves out more than two-third of the U.S. global warming pollution."

The administration's legal stand is consistent with the president's view that Congress, not the courts, must decide the hard political questions. But some environmental advocates were outraged, since they see no prospect for major climate change legislation coming from Congress.

"With friends like this, who needs enemies?" said Matthew Pawa, the Boston environmental lawyer who is leading the suit against the power plants.

Three years ago, a lawsuit brought by 12 states, including California and Illinois, broke a logjam on global warming. The Supreme Court, in a 5-4 ruling, rebuked the Bush administration for its go-slow policy on climate change and ruled that greenhouse gases could be regulated under the Clean Air Act. This decision cleared the way for new EPA rules that will limit emissions from motor vehicles.

The pending suit targeted the nation's five largest producers of electric power. One of them is the Tennessee Valley Authority, which is run as a federal agency. Katyal entered the case in defense of the TVA, but urged the Supreme Court to throw out the entire lawsuit.

The case has been closely watched as a test of whether producers of greenhouse gases can be sued.

Dan Riedinger, a spokesman for the Edison Electric Institute in Washington, said the utilities were pleased by the administration's intervention. "We agree with them that the courts are not the right place for making environmental policy decisions," he said.

The Supreme Court will not decide for several months whether to hear the case of American Electric Power Co. vs. Connecticut, or whether to follow Katyal's advice to issue a summary ruling overturning the appeals court decision.

Experts in environmental law say they worry that under Chief Justice John G. Roberts Jr., the court will seize on the administration's suggestion and use the case to bar future suits involving environmental protection. One disputed key issue concerns "standing." A plaintiff in a lawsuit must have a personal injury. The justices have been skeptical when environmentalists sue and claim they are injured by pollution or by the loss of natural forests or an endangered species.

In the major global warming case in 2007, Roberts dissented with three others and said neither the states nor the environmentalists had standing to sue the Bush administration over its failure to act against greenhouse gases. Justice Anthony M. Kennedy cast a crucial vote with the liberal bloc and said the coastal states faced an injury from rising seas.

If the high court were to take up the new global warming case, the two Obama appointees might have to step aside. Justice Sonia Sotomayor heard the case when it first came to the appeals court in Manhattan, and Justice Elena Kagan was the solicitor general when the appeal came to her office.

If so, Roberts and the three conservative dissenters could form a majority on a seven-member court.

UCLA law professor Ann E. Carlson said she was surprised that Katyal urged the court to reconsider whether the states had standing to contest the carbon pollution from the power plants.

"I find this part of the brief most worrisome," she said. "If the court takes up the case and limits standing in climate change lawsuits, the ramifications would extend far beyond this."

david.savage@latimes.com

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