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Panel Debates Climate Change Case Before Supreme Court

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Mere days before Earth Day, oral arguments were heard by the U.S. Supreme Court in the most important pending climate change case in the country, American Electric Power Company vs. Connecticut.

Dan Jacobs, executive-in-residence and director of the new MS in Sustainability Management program at Kogod, took two students with him to hear the case.

"Attending oral arguments at the Supreme Court and sitting in the same room as the justices was an incredibly powerful experience," Hilary Kerwin, SIS/BA International Studies '10, said. "I studied environmental policy, and the visit to the Supreme Court added a really dynamic element to what I've learned in the classroom."

To highlight the significance of the case as well as offer background and predictions regarding the outcome, Jacobs hosted a panel discussion April 20, "Climate Change and the Supreme Court."

Kogod jointly sponsored the panel along with the School of Public Affairs.

Distinguished panelists included Janill Richards, deputy attorney general for the state of California; Ray Ludwiszewski, a partner at Gibson, Dunn, & Crutcher and former general counsel for the Environmental Protection Agency (EPA); and Amanda Leiter, associate professor at Catholic University's Columbus School of Law, who will be joining AU's Washington College of Law faculty this fall.

Each panelist is closely following the case. Ludwiszewski submitted a brief on behalf of Association of Global Automakers, the Alliance of Automobile Manufacturers, and the National Automobile Dealers Association; Richards' "client," the state of California, is a plaintiff; and Leiter submitted a brief on behalf of law professors, often called "friends of the court."

Each panelist shed insight on how the case reached the Supreme Court and the reasons why the Court might rule one way or the other.

Common law is law developed entirely by the courts, not legislation. A public nuisance is an offense in which the injury is borne by a community, rather than an individual victim.

The plaintiffs—numerous states and private parties—are alleging damages caused by carbon pollution emitted by the five of the largest utility companies in the U.S. In essence, they are suing these companies for contributing to global warming.

Broadly, the case addresses three issues, according to the SCOTUS blog:

  1. Whether states and private parties may seek emissions caps on utilities for their alleged contribution to global climate change.
  2. Whether a cause of action to cap carbon dioxide emissions can be implied under federal common law.
  3. Whether claims seeking to cap carbon dioxide emissions—based on a court's weighing of the potential risks of climate change against the socioeconomic utility of defendants' conduct—should be governed by law derived from the Constitution's text, structure, history and so forth as interpreted by the Court, or if it is a political question, meaning the resolution lies with another branch of government and is beyond the scope of judicial relief.

Leiter believes the case will boil down to two questions: what responsibility do these particular companies have to reduce green house gases, and whether there are cost-effective, reasonable ways to reduce emissions without changing their current business models.

Ludwiszewski noted that emissions over 100 tons per year is the trigger, or threshold, for EPA regulation under the Clean Air Act. In 2003, the average U.S. household emitted 59 tons of green house gases.

“If the Court rules in favor of the plaintiffs, the decision will create a domino effect,” Ludwiszewski said. The result could open the proverbial Pandora’s box, allowing anyone to sue anyone over greenhouse gas emissions.

Richards talked about the potential role of displacement in this case. That is, if the court determines that there is a remedy already in place, the basis for the lawsuit would be dismissable.

"[Displacement is] a comprehensive scheme that speaks directly to a particular problem and provides adequate remedy," Richards said.

The case was argued before the 2nd Court of Appeals on June 7, 2006, and a decision was handed down on September 21, 2009. The case was appealed to the Supreme Court, granted certiorari, or judicial review, in December 2010, and argued before the Court on April 19, 2011.

"The Court is not known for cutting-edge scientific pronouncements, so when they say it’s a problem [climate change], it's a problem," Richards said.

The Court's decision is expected in June.