Fwd: + AEP, Utilities Get Supreme Court Review on Warming (Correct)

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AEP, Utilities Get Supreme Court Review on Warming (Correct)
2010-12-06 15:07:48.565 GMT

(Removes reference to Kagan as not hearing case in 6th

By Greg Stohr
Dec. 6 (Bloomberg) -- The U.S. Supreme Court said it will
hear an appeal by four power companies including American
Electric Power Co., agreeing to decide whether they must face a
suit by states seeking a reduction in carbon dioxide emissions.
The eight states, including New York and California, say
plants operated by AEP, Xcel Energy Inc., Duke Energy Corp.,
Southern Co. and the Tennessee Valley Authority contribute to
global warming by pumping 650 million tons of carbon dioxide
into the atmosphere each year. The suit seeks to force cuts in
emissions from the plants.
A ruling barring the suit would be a victory for businesses
beyond the utilities involved in the case. Trade groups
representing automakers, oil companies, farmers, mining
companies, chemical companies and manufacturers all filed briefs
urging Supreme Court intervention, in some cases saying their
members might face similar lawsuits.
The lower court ruling "has staggering economic
implications," the U.S. Chamber of Commerce said in a court
filing supporting the utilities.
The states contend that the carbon dioxide emissions are a
"public nuisance," invoking a legal theory more typically used
in cases of localized pollution. In letting the suit go forward,
along with a similar one filed by three land trusts, the New
York-based 2nd U.S. Circuit Court of Appeals overturned a trial
judge who had concluded that the dispute belonged in the
political arena, rather than the courts.
Justice Sonia Sotomayor didn't take part in today's
decision to hear the case. Sotomayor heard arguments in the case
as a judge on the 2nd Circuit, though she didn't take part in
the appeals court's ruling.

Obama Position

The case will put the Obama administration the position of
arguing alongside the power industry. In a brief filed on behalf
of the TVA, acting U.S. Solicitor General Neal Katyal said the
courts should defer to Congress and the executive branch on what
steps to take against climate change.
Katyal had urged the court to set aside the lower court
ruling and order reconsideration, rather than granting a
Carbon dioxide from the utilities represents about 25
percent of emissions from U.S. power plants and 10 percent of
emissions from all U.S. sources, the states said in their 2004
lawsuit. Vermont, Rhode Island, Iowa, Wisconsin, Connecticut and
New York City are also plaintiffs in the case.
In their appeal, the companies argue that the states lacked
the legal right, or standing, to sue because they can't show
that they were harmed by anything the utilities did or that they
would benefit from a ruling against the power companies.

Traceable Injury?

"A court is not a regulator and may not enter relief
against a particular defendant where the plaintiff's injury is
not traceable to that defendant and where relief against the
defendant would not redress that injury," the companies argued.
State officials led by New York Attorney General Andrew
Cuomo argue that they have done enough by alleging that a
reduction in carbon dioxide emissions from the plants would ease
climate change. The point to a 2007 Supreme Court decision
backing a state suit that sought to make the Environmental
Protection Agency take steps against auto emissions.
"While it may be true that regulating motor-vehicle
emissions will not by itself reverse global warming, it by no
means follows that we lack jurisdiction to decide whether EPA
has a duty to take steps to slow or reduce it," the five-
justice majority said in that case.
The case, which the court will consider and decide in the
first half of 2011, is American Electric Power v. Connecticut,

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--With assistance from David Glovin in New York. Editors: Jim
Rubin, Brigitte Greenberg.

To contact the reporter on this story:
Greg Stohr in Washington at +1-202-624-1841 or

To contact the editor responsible for this story:
Mark Silva at 1-202-654-4315 or