Monday, June 20, 2011

SCOTUS Decides American Electric Power Co. v. Connecticut

Jun 20: In the U.S. Supreme Court (SCOTUS), Appealed from the Second Circuit, Case No. 10-174. In this important case the High Court addresses the issue of whether the plaintiffs (several States, the city of New York, and three private land trusts) can maintain Federal "common law public nuisance" claims against greenhouse gas (GHG) carbon-dioxide emitters (four private power companies and the Federal Tennessee Valley Authority). The plaintiffs asked for a decree setting carbon-dioxide emissions for each defendant at an initial cap, to be further reduced annually. The Supreme Court ruled that U.S. EPA's authority under the Clean Air Act "displace the claims the plaintiffs seek to pursue." The High Court reversed the judgment of the Second Circuit and remanded the case for further proceedings consistent with its opinion. The Supreme Court ruling was unanimous, with two justices -- Alito and Thomas -- filing a separate concurring in part and concurring in the judgment opinion; and Justice Sotomayor took no part in the consideration or decision of the case.
    The Supreme Court heard oral arguments in the case on April 19, [See WIMS 4/25/11WIMS 2/8/11 & WIMS 2/15/11]. Petitioners in the case involve five investor-owned utilities [American Electric Power Co. Inc., American Electric Power Service Corp., Cinergy Corp., Southern Co. and Xcel Energy Inc.] (Petitioners) and the Tennessee Valley Authority (TVA), an electric utility owned by the U.S. government which filed a separate brief. Respondents include: CT, NY, CA, IA, RI, VT, the City of NY and Open Space Institute, Inc., Open Space Conservancy, Inc., and Audubon Society of New Hampshire. Additionally many amicus briefs on both sides of the issue were filed.
    The High Court ruled in part, "It is altogether fitting that Congress designated an expert agency, here, EPA, as best suited to serve as primary regulator of greenhouse gas emissions. The expert agency is surely better equipped to do the job than individual district judges issuing ad hoc, case-by-case injunctions. Federal judges lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order. See generally Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 865–866 (1984). Judges may not commission scientific studies or convene groups of experts for advice, or issue rules under notice-and-comment procedures inviting input by any interested person, or seek the counsel of regulators in the States where the defendants are located. Rather, judges are confined by a record comprising the evidence the parties present. Moreover, federal district judges, sitting as sole adjudicators, lack authority to render precedential decisions binding other judges, even members of the same court.

    "Notwithstanding these disabilities, the plaintiffs propose that individual federal judges determine, in the first instance, what amount of carbon-dioxide emissions is 'unreasonable,' App. 103, 145, and then decide what level of reduction is 'practical, feasible and economically viable,' App. 58, 119. These determinations would be made for the defendants named in the two lawsuits launched by the plaintiffs. Similar suits could be mounted, counsel for the States and New York City estimated, against 'thousands or hundreds or tens' of other defendants fitting the description 'large contributors' to carbon-dioxide emissions. Tr. of Oral Arg. 57.

    "The judgments the plaintiffs would commit to federal judges, in suits that could be filed in any federal district, cannot be reconciled with the decisionmaking scheme Congress enacted. The Second Circuit erred, we hold, in ruling that federal judges may set limits on greenhouse gas emissions in face of a law empowering EPA to set the same limits, subject to judicial review only to ensure against action 'arbitrary, capricious, . . . or otherwise not in accordance with law.' §7607(d)(9)."

     The High Court also addressed the issue of plaintiffs request for relief "under state law, in particular, the law of each State where the defendants operate power plants." The High Court said,  "The Second Circuit did not reach the state law claims because it held that federal common law governed. . . In light of our holding that the Clean Air Act displaces federal common law, the availability vel non of a state lawsuit depends, inter alia, on the preemptive effect of the federal Act. Id., at 489, 491, 497 (holding that the Clean Water Act does not preclude aggrieved individuals from bringing a 'nuisance claim pursuant to the law of the source State'). None of the parties have briefed preemption or otherwise addressed the availability of a claim under state nuisance law. We therefore leave the matter open for consideration on remand."
    Access the complete opinion (click here). Access the Supreme Court docket indicating the various briefs filed, questions presented and attorneys involved in the case (click here). Access a transcript of the oral arguments (click here). Access links to the 2nd Circuit decision, briefs and petitions filed (click here). Access the various other briefs in the case (click here). [*Air, *Climate, *SCOTUS] (click here for information on getting the links and more information about eNewsUSA).

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In Re: Natural Res. Defense Council

Jun 17: In the U.S. Court of Appeals, D.C. Circuit, Case No. 10-1142. On Petition for Writ of Mandamus to the Food and Drug Administration. The appeal concerns whether this court or the district court has jurisdiction over matters relating to a citizen petition filed pursuant to Food and Drug Administration (FDA) regulations promulgated under the Food, Drug, and Cosmetic Act (the Act) , 21 U.S.C. §§ 301 et seq.
    The Appeals Court explains that because its citizen petition to revoke regulations permitting Bisphenol A (BPA) to be used as a food additive, see, e.g, 21 C.F.R. § 177.1555; id. § 177.1595, has been pending since October 21, 2008, the Natural Resources Defense Council (NRDC) seeks what amounts to a writ of mandamus directing the FDA to issue a final decision on its petition. The Appeals Court rules, "We hold that exclusive jurisdiction over citizen petitions lies in the district court, and accordingly we dismiss the petition." The Appeals Court says further, "Accordingly, because the NRDC cannot show that jurisdiction over its citizen petition lies exclusively in this court, or that all final FDA action on its petition would be directly and exclusively reviewable in this court, we dismiss the petition for lack of jurisdiction."
    In further explanation, the Appeals Court said, "during oral argument, counsel for the NRDC suggested that section 10.30(e)(1) of the regulations, providing that the FDA 'shall . . . rule upon each petition . . . taking into consideration . . . time requirements established by statute,' requires the FDA to comply with the statutory timeline in section 409(c)(2) of the Act, and thereby establishes that the citizen petition process is governed by the requirements of section 409 generally. Oral Arg. Recording at 3:02-3:23. The NRDC referred to section 10.30(e) in its Petition at 8, but only in the context of listing the three possible responses by the FDA to a citizen petition. This was insufficient to put the FDA on notice of the argument presented during oral argument. Ordinarily this would mean that the argument is forfeited. Cf. U.S. v. Southerland, 486 F.3d 1355, 1360 (D.C. Cir. 2007). Inasmuch as the NRDC's petition is filed as an original proceeding in this court and the issue goes to our jurisdiction, however, we reach the merits. See Shays v. FEC, 528 F.3d 914, 922–23 (D.C. Cir. 2008). The FDA correctly argued in its response that section 10.30(e)(1) does nothing more than make the statutory deadlines one of several factors that the FDA must consider and weigh in its discretion. This provision simply highlights the difference between the food additive petition review process, which is subject to the statutory timeline, and review of a citizen petition established by regulation, which treats the timeline as a guideline for the FDA to consider and allows for a "tentative response" by the FDA. The NRDC's reliance on section 10.30(e) is thus insufficient to support its position that section 409 applies generally to its citizen petition."
    Access the complete opinion (click here). [*Toxics, *CADC] (click here for information on getting the links and more information about eNewsUSA).

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