Posts in Category: Clean Air Act

Sort of winning pays under CAA

Southern Alliance for Clean Energy v. Duke Energy Carolinas LLC (4th Cir. Apr. 14, 2011):

The Fourth Circuit affirmed a decision awarding nearly $500,000 in attorneys’ fees to environmental groups that challenged approval of a coal-fired power plant in North Carolina. The groups filed suit in July 2008, alleging that state regulators had not checked whether the plant would meet the CAA’s requirement that it use maximum achievable control technology. In December 2008, the district court granted the groups’ motion for summary judgment. However, the district court dismissed the case in July 2009 because regulators had taken over handling the file. Nonetheless, the district court held that the defendant company was required to pay some of the attorneys’ fees that plaintiffs had incurred to that point. The Fourth Circuit affirmed, holding that the plaintiffs need only achieve “some” success to qualify for an award under the CAA.

American Electric: CAA preempts the new federal common law

Connecticut v. American Electric Power (June 20, 2011)

In an 8-0 opinion, the U.S. Supreme Court held that federal common law nuisance claims cannot be brought against utilities for their greenhouse gas emissions given that the Clean Air Act and EPA regulations displace federal common law in this area. The lawsuit alleged that under common law, the companies’greenhouse gas emissions constitute a public nuisance in contributing to climate change. The plaintiffs sought injunctive relief requiring each power company to cap its greenhouse gas emissions and reduce them by a specified percentage each year. The district court dismissed the lawsuit in 2005, holding that the claims represented a political question not under the jurisdiction of the courts. In 2009, the Second Circuit reversed, holding that the plaintiffs could proceed with their lawsuit.

The Court affirmed in part and reversed in part.  It held that at least some plaintiffs had Article III standing under Massachusetts v. EPA,which permitted state to challenge refusal of EPA to regulate greenhouse gas emissions, and no other threshold obstacle barred review.  Significantly, the Court flatly rejected the argument that a claim for damages caused by climate change represented a political questions beyond the jurisdiction of the courts.

Second, the Clean Air Act (CAA) and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon dioxide emissions from fossil-fuel fired power plants.  However, the Court left open the possibility that such a claim under state nuisance law, leaving that issue for consideration on remand.