WASHINGTON — The Supreme Court justices indicated Tuesday that they would throw out a huge global warming lawsuit brought by six states against coal-fired power plants in the South and Midwest. And they would do so with the support of the Obama administration.
Acting U.S. Solicitor General Neal Katyal urged the justices to end the lawsuit, insisting the problem of global warming and greenhouse gases is too big and unwieldy for a single judge to handle. It is a regulatory problem for the Environmental Protection Agency, he said.
Four years ago, the justices cleared the way for the Environmental Protection Agency to regulate carbon dioxide and other greenhouses gases under the Clean Air Act. Since then, the government has adopted stricter standards for motor vehicles. The agency is debating regulations for power plants but has taken no firm action.
But several states — led by Connecticut, New York and California — have pressed ahead with a lawsuit that calls carbon pollution a “public nuisance” and asks a federal judge to restrict emissions from power plants.
During Tuesday’s argument, most of the justices — liberal and conservative — said they were skeptical about turning over such a complicated and politically charged issue to a single judge.
This “sounds to me a lot like what the EPA does,” said Justice Ruth Bader Ginsburg. A judge cannot be “a super EPA” who sets detailed regulations for power plants, she said.
Justice Elena Kagan agreed. Prior to the 1970s, when Congress enacted the Clean Air Act and the Clean Water Act, judges decided “nuisance” lawsuits where one state sued another for causing pollution.
“It’s a different world,” she said, now that the EPA has the legal authority to regulate pollution, including greenhouses gases.
Last summer, Katyal surprised and angered some environmentalists when he filed a brief on the side of the major power producers asking the Supreme Court to throw out the “public nuisance” lawsuit.
During Tuesday’s argument, he called the global warming suit unlike any that has come before the high court before. Because there are “billions of emitters” of carbon pollution and “billions of potential victims” of climate change, there is no way for a judge to decide such a case based on a legal principle, he said.
Katyal said the EPA planned to issue proposed regulations for power plants next year.
In defense of the lawsuit, New York state Solicitor General Barbara Underwood said the EPA’s “promise of regulation” in the future was not a good reason for “closing the courthouse door.”
She said the suit, which began in 2004, targeted the coal-fired power plants that emit about 10 percent of the nation’s greenhouse gases.
“It could be a long time before the EPA acts,” she said.
She also said the suit was still in its early stages and that the states would have to prove the need for strict emissions standards for power plants.
But she spent most of her time at the lectern trying to explain why the suit should not be thrown out now.
Others joining in the suit are Rhode Island, Vermont and Iowa, plus New York City.
Justice Sonia Sotomayor withdrew from the case of American Electric Power Co. vs. Connecticut because she was on the U.S. appeals court in New York when its judges cleared the suit to go forward.
