The court will hear an appeal of a 2009 decision by the United States Court of Appeals for the Second Circuit, in New York, allowing a suit filed against the utilities by eight states, New York City and three land trusts to proceed. A lower court had dismissed the suit, calling the regulation of emissions a political matter.
The suit, brought in 2004, argued that the utilities were creating a public nuisance by burning coal and spewing heat-trapping carbon dioxide into the atmosphere, contributing to the problem of global warming. At the time the lawsuit was considered an alternative to federal legislation or regulation, which had been slow in coming.
It is the first public-nuisance suit related to climate change to reach the Supreme Court. Lower courts have generally declined to allow such suits to proceed because it would put judges in the position of deciding how much carbon dioxide was too much.
In their appeal of the Second Circuit’s reinstatement of the suit, the utilities — American Electric Power, the Southern Company, Xcel Energy, the Cinergy Corporation and the Tennessee Valley Authority — said the emissions issue was a matter for Congress.
The Obama administration urged the Supreme Court to hear the appeal but for a somewhat different reason, saying the nuisance claim would interfere with its current efforts to regulate carbon dioxide through the Environmental Protection Agency. The Supreme Court held in 2007 that greenhouse gases were pollutants under the Clean Air Act and therefore could be regulated by the E.P.A.
The states — California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont and Wisconsin — and other plaintiffs urged the Supreme Court to reject the appeal.
In their original lawsuit, the states cited studies by the United Nations and the National Academy of Sciences predicting threats to the environment from greenhouse-gas emissions and global warming. The land trusts said that rising sea levels linked to climate change would inundate their properties, among other problems.
Justice Sonia Sotomayor has recused herself because she sat on the Second Circuit panel that heard arguments in the case.
Tracy Hester, a professor at University of Houston Law Center specializing in environmental issues, said a Supreme Court ruling could potentially determine who has the standing in such lawsuits — and whether they can be brought in the absence of specific legislation or federal regulations on emission limits.
New Mexico to Cut Emissions
By a vote of 4 to 1, New Mexico regulators on Monday adopted a plan for a 3 percent annual cut in greenhouse-gas emissions from the state’s biggest polluters.
The cuts, which would be based on 2010 emissions and would take effect in 2013, would put New Mexico in a league with California among states with the most stringent controls on greenhouse-gas emissions.
The move, combined with state incentives for alternative energy projects, “puts New Mexico on course to compete in the clean-energy economy,” said Mariel Nanasi, senior policy adviser with New Energy Economy, the advocacy group that proposed the measure.
Industry groups had opposed the rule.