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Reject 'nuisance' suit over greenhouse gas: White House


WASHINGTON—The Obama administration has asked the U.S. Supreme Court to overturn an appeals court decision that permitted a “public nuisance” suit to proceed over greenhouse gas emitters' contributions to global warming.

The case, American Electric Power Co. Inc. et al. vs. State of Connecticut et al., is on appeal to the Supreme Court following a 2009 decision by the 2nd U.S. Circuit Court of Appeals that allowed an underlying lawsuit to proceed against several of the nation's largest coal-burning utilities including AEP, Duke Energy Corp., Southern Co. and Xcel Energy Inc. The underlying suit was brought by a coalition of states, environmental groups and New York City

The energy companies filed a petition for review by the Supreme Court earlier this month and asked the court to reject the argument that greenhouse gas emissions can be addressed through litigation.

The suit is one of three pivotal cases wending their way through the U.S. court system as environmentalists attempt to use litigation to force utilities to reduce greenhouse gas emissions, said William Stewart, a partner at Nelson Levine de Luca & Horst L.L.C. in Blue Bell, Pa., who specializes in climate change litigation.

In Native Village of Kivalina vs. Exxon Mobil Corp., which is pending before the 9th US. Circuit Court of Appeals, a group of Eskimo villagers allege that 24 oil, energy and utility companies' greenhouse gas emissions caused Arctic sea ice to diminish, threatening native fisheries.

The 5th U.S. Circuit Court of Appeals recently reinstated a district court's decision to dismiss Ned Comer et al. vs. Murphy Oil USA Inc. et al., which was filed by Gulf Coast property owners who alleged that oil and electric power companies' emissions “added to the ferocity of Hurricane Katrina” by contributing to global warming (BI, March 2 and March 8, 2010).

Because the Obama administration supports legislation to limit greenhouse gas emissions, many environmentalists expected it to support, rather than oppose, the litigation.

However, in the administration's brief, filed Tuesday on behalf of the Tennessee Valley Authority, acting U.S. Solicitor General Neal Katyal agreed with the defendants and said the courts should not be used to address such issues.

The brief urges the Supreme Court to vacate the American Electric Power decision and remand the case to the 2nd Circuit for further proceedings, this time taking into account the administration's push to regulate greenhouse gases under the Clean Air Act.

“This is a very positive development,” Mr. Stewart said. “What's viewed as a pro-environment liberal administration by some is taking the position that nuisance cases over global warming should not go through the judicial system.”

Richard Faulk, chairman of the litigation department and environmental practice at Gardere Wynne Sewell L.L.P. in Houston, said the soliciter general's intervention in the case should help defendants.

"The solicitor general's voice is pretty powerful with the Supreme Court," he said.

Mr. Faulk, who represents several chemical, refining, manufacturing and insurer organizations, is preparing an amicus brief that will be filed before next week's deadline.

The court will decide during its next term, which begins in October, whether to hear the case.

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