Tuesday, June 21, 2011
The big news in environmental health today is yesterday’s ruling by the Supreme Court that the lawsuit brought by several U.S. states claiming that Greenhouse gases emitted by five power companies was a nuisance could not go forward. In American Electric Power v. Connecticut, the Judges ruled in an 8-0 decision that the Clean Air Act pre-empted any federal common law nuisance claim, and the Environmental Protection Agency, not the Court, would determine how to address any dangers to the public. The decision was widely reported included good summaries in the LA Times, NY Times, and the Washington Post.
The draft rules are due out shortly, but it is likely they will be severely weakened or delayed by legislation or other pressure from Congress. House Republicans made this clear in last week’s Energy and Commerce subcommittee hearings, as reported here. To this writer, the opinion was expected, and is good law, since the EPA is about to release its greenhouse gas rule, has the scientific expertise to evaluate the health risks, and is charged with implementing the Clean Air Act. But the courts will inevitably end up deciding whether the rule is adequate, and if it is found lacking, the states may still be able to attempt to recover for the harm caused by the gases. A key part of the opinion, delivered by Justice Ginsberg, was a reminder that plaintiffs have a remedy in the federal courts in the event that the EPA fails to act or fails to issue reasonable regulations. The Republicans need to be read this warning carefully. If Congressional opponents end up pressuring EPA too much and sidetracking the rule, as threatened, a federal tort claim can be refiled, and this time it could be successful.