12 states have filed a brief (as Amici Curiae) with the U.S. Supreme Court in support of the Petition of American Electric Power Company, Inc., et al. for a Writ of Certiorari to the U.S. Court of Appeals for the 2nd Circuit and asking that the Supreme Court reverse the 2nd Circuit’s recent holding that:
States and private plaintiffs may maintain actions under federal common law alleging that defendants—in this case, five electric utilities—have created a “public nuisance” by contributing to global warming, and may seek injunctive relief capping defendants’ carbon dioxide emissions at judicially-determined levels. [Emphasis added]
The 12 states’ brief contends that, in contrast with cases where federal courts review the legality of agency rules by reference to how Congress has resolved a political debate, the 2nd Circuit’s decision proposes to resolve by judicial fiat the ongoing public debate over greenhouse gas regulation. Such regulation, the states further contend, requires determinations of national, regional, and local policy outside of the competency of the judiciary, and only statutes and regulations duly enacted by representatives accountable to the citizenry can legitimately define CO2 limits.
Reposted with permission from Andrews Kurth's EcoZone Blog.© 2013 Andrews Kurth LLP