The SG’s Brief in American Electric Power v. Connecticut

The environmental law community is buzzing over a brief filed by the Solicitor General’s Office this week on behalf of the Tennessee Valley Authority in American Electric Power v. Connecticut.  As reported by the Washington Post, the WSJ‘s Washington Wire, and Greenwire, environmentalist groups are shocked and dismayed by the SG’s decision to enter the case.  “Obama Sides with Polluters” reads the title of a blog post by UCLA’s Jonathan Zasloff at Legal Planet.

In AEP, a panel of the U.S. Court of Appeals for the Second Circuit (that initially included then-Judge Sonia Sotomayor) allowed several states and private groups to pursue public nuisance claims under federal common law against a handful of the nation’s largest utilities, including the TVA, for their contribution to global warming.  Among other things, the court held the states had standing and that their nuisance claims were not displaced by federal regulatory authority over greenhouse gas emissions under the Clean Air Act.  This suit, like others filed elsewhere, has increased pressure on utilities and others to accept federal climate change legislation.

The SG’s brief urges the Supreme Court to toss out the Second Circuit’s opinion and send it back to the Second Circuit:

this Court should grant certiorari, vacate the judgments of the court of appeals, and remand to enable the court of appeals to consider two questions in the first instance: (1) whether, independent of Article III standing requirements, plaintiffs’ suits should be barred as a matter of prudential standing; and (2) whether, in light of multiple actions that EPA has taken since the court of appeals issued its decision, any otherwise cognizable federal common-law claims here have been displaced.

Unlike some, I don’t find the SG’s decision to file the brief all that surprising, and I find the legal arguments it makes on behalf of the TVA (one of the defendants in the original suit) rather modest and quite sensible. I explain below the jump

The Second Circuit’s conclusion that the states’ federal common law public nuisance claims were not displaced by the Clean Air Act was probably the weakest and least convincing portion of the panel’s lengthy opinion.  The relevant precedents stress that whether federal environmental regulations displace federal common law actions for interstate pollution turns on legislative action. This would suggest that if the Clean Air Act is a sufficiently comprehensive regulatory statute (a hard claim to deny), it displaces federal common law nuisance suits relating to emissions covered by the Act.  Thus, once the Supreme Court determined that the Clean Air Act reaches greenhouse gases, displacement would follow (a point I heard more than one attorney involved in the case concede before Mass. v. EPA was decided).

The Second Circuit rejected the displacement claim by focusing not on the Clean Air Act, but on its implementation.  Specifically, the Second Circuit concluded that since the EPA had not yet begun to exercise its authority to regulate greenhouse gases, the states’ nuisance claims had yet to be displaced.  This approach both shifted the locus of displacement authority from Congress to the EPA, and made the question of displacement more variable, and potentially dependent upon changes in regulatory policy from one Administration to the next.  This is but one reason why questions of displacement (like preemption) should focus on the will of Congress, not administrative action.

The SG’s brief does not frontally attack the Second Circuit’s reasoning.  Rather it makes the more modest argument that, whatever the state of play when AEP was argued or decided, today the EPA is actively engaged in the regulation of greenhouse gases.  Several final rules have been promulgated, with more to follow.  Therefore, the SG simply urges remand so that the Second Circuit can consider whether subsequent regulatory developments not satisfy the standard the Second Circuit itself articulated; “even assuming the court’s decision was correct when it was issued, it is now clear, in light of intervening developments, that any federal common-law cause of action against petitioners and TVA for their emissions has been displaced.”

The other argument made by the SG — that the states lack prudential standing to pursue their claim — is more upsetting to environmentalists, but not all that surprising coming from the SG’s office in defense of a federal entity like the TVA.  The SG’s office has rather consistently sought to increase the Article III standing barriers in environmental cases for the past 20 to 30 years so as to preserve greater executive branch autonomy.  Here the SG is not making an Article III argument, however, but merely a prudential one, that since global warming is global, it represents the sort of generalized grievance that is inappropriate for judicial resolution and is better left in the hands of the political branches.  (I’m sympathetic to this argument, of course, having made a similar one in an amicus brief in Mass v. EPA.)

In making this argument, the SG notes that the decision to recognize Massachusetts’ standing in Mass v. EPA was not grounded solely in Massachusetts’ sovereignty as a state, but also on the fact that Massachusetts was seeking to protect a procedural right guaranteed by the Clean Air Act.  As the SG’s brief notes, Justice Stevens’ majority opinion expressly relied upon the language in Lujan (from Justice Kennedy’s concurrence) arguing that legislative “‘authorization’ of the ‘type of challenge to EPA action’ present there—but absent in the common-law action here—was ‘of critical importance to the standing inquiry.'”  Where Congress creates a statutory cause of action, there is no prudential standing concern, but Congress has not done so here.

By framing the standing argument in prudential terms, and not the Article III case or controversy requirement, the SG’s brief presents the Court with a much narrower ground for decision, and one that is far less likely to limit citizen-suit standing in other cases.  In other words, it’s an argument that helps the SG’s client, the TVA, without threatening the viability of environmentalist citizen suits in other contexts.  In other words, it’s a much more modest argument than one would have expected from a Republican administration.

Taken as a whole, I see the SG’s brief as seeking to vindicate the interests of its client, the TVA, on the narrowest grounds possible — and certainly on narrower grounds than the TVA would itself have argued left to its own devices.  (This is a federal agency that has sued the EPA, after all.)  In not seeking a reversal of the Second Circuit with a merits opinion, but a narrow GVR that would have comparably little effect on other cases.

Another interesting aspect of this case is that Justice Sotomayor will be recused, as she sat on the original three-judge panel that worked on this case for years.  (As I discussed in this thread of posts.)  So if the Court accepts cert, a sweeping environmentalist victory will be difficult to achieve.  This is yet more reason Greens should be thankful for the SG’s narrow argument.

UPDATE: I have some back-and-forth with Jonathan Zasloff about the case here.