Who has the right to make the rules: the government agency or a federal court?
WASHINGTON — The Obama administration and environmental interests generally agree that global warming is a threat that must be dealt with.
But they're on opposite sides of a Supreme Court case over the ability of states and groups such as the Audubon Society that want to sue large electric utilities and force power plants in 20 states to cut their emissions.
The administration is siding with American Electric Power Co. and three other companies in urging the high court to throw out the lawsuit on grounds the Environmental Protection Agency, not a federal court, is the proper authority to make rules about climate change. The justices will hear arguments in the case Tuesday.
The court is taking up a climate change case for the second time in four years. In 2007, the court declared that carbon dioxide and other greenhouse gases are air pollutants under the Clean Air Act. By a 5-4 vote, the justices said the EPA has the authority to regulate those emissions from new cars and trucks under that landmark law. The same reasoning applies to power plants.
The administration says one reason to end the current suit is that the EPA is considering rules that would reduce carbon dioxide emissions from power plants. But the administration also acknowledges that it is not certain that limits will be imposed.
At the same time, Republicans in Congress are leading an effort to strip the EPA of its power to regulate greenhouse gases.
'The ultimate backstop'
The uncertainty about legislation and regulation is the best reason for allowing the case to proceed, said David Doniger, a lawyer for the Natural Resources Defense Council, which represents Audubon and other private groups dedicated to land conservation.
"This case was always the ultimate backstop," Doniger said, even as he noted that the council would prefer legislation or EPA regulation to court decisions. The suit would end if the EPA does set emission standards for greenhouse gases, he said.
The legal claims advanced by six states, New York City and the land trusts would be pressed only "if all else failed," he said.
When the suit was filed in 2004, it looked like the only way to force action on global warming. The Bush administration and the Republicans in charge of Congress doubted the EPA's authority to regulate greenhouse gases.
Federal courts long have been active in disputes over pollution. But those cases typically have involved a power plant or sewage treatment plant that was causing some identifiable harm to people, and property downwind or downstream of the polluting plant.
Global warming, by its very name, suggests a more complex problem. The power companies argue that any solution must be comprehensive. No court-ordered change alone would have any effect on climate change, the companies say.
"This is an issue that is of worldwide nature and causation. It's the result of hundreds of years of emissions all over the world," said Ed Comer, vice president and general counsel of the Edison Electric Institute, an industry trade group.
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