Second Circuit's Decision in Connecticut v. AEP Makes Clear No One is Above the Law
The Second Circuit's ruling Monday in State of Connecticut, et al. v. American Electric Power Company Inc., et al. revived a public nuisance lawsuit against the nation’s five largest electric power companies. The case opens the door to a potential judicial remedy for the alleged harm and increases the pressure on Congress and the Executive Branch to devise a more comprehensive solution to our greenhouse gas problem.
In an ideal world, would we give the task of designing facility-specific climate controls to the courts? Of course not. But we don’t live in an ideal world. Congress is paralyzed and EPA’s authority under the Clean Air Act has not yet been translated into concrete limits on greenhouse gases. The Second Circuit’s decision maintains the courts’ traditional common law powers to adjudicate claims that one party’s actions are harming another. The other two branches of government should take note.
Eight states, the City of New York, and several non-profit land trusts brought the case against five large power companies, companies that generate about a quarter of the U.S. electric power sector’s carbon emissions and about 10 percent of the nation’s total emissions. Pointing …
As fellow environmental law professors David Schoenbrod and Richard Stewart take their advocacy for market mechanisms and skepticism about regulation public, with an op-ed in the Wall Street Journal on Monday, I thought it was time to speak out in favor of a role for regulation. They claim that the climate change bill that passed the House in July, the American Clean Energy and Security Act of 2009 (the Waxman-Markey bill), relies too much on “top-down” regulation and not enough on pure market mechanisms. Regulations, in their view, are bureaucratic, inefficient, and politically motivated to favor key industrial constituencies. Market mechanisms would be more efficient and effective, they say, because once an emissions cap is set, industry and consumers would make their own rational emissions reduction decisions.
Ideological claims that “markets work” and “regulations don’t work” miss the point. Schoenbrod and Stewart identify failed regulations and …
The Waxman-Markey bill, in its current form, continues the nation’s wise respect for the complementary roles of the federal government and the states. By establishing a national cap and a national trading program, the bill would draw all states into the essential task of reducing greenhouse gas (GHG) emissions. But, like the federal environmental laws before it, the bill simultaneously provides states with the power to achieve more stringent reductions. Although industry may resist the prospect of state control, Congress should maintain the balance between federal and state power the bill has established.
The Clean Air Act, which the bill amends, already allows states to set more stringent regulatory standards for facilities in their states. In a national cap-and-trade program, however, that power could be rendered meaningless due to the interconnections among the states created by a national trading system. For example, if a state were …
On Tuesday, March 31, House Energy and Commerce Committee Chairman Henry Waxman (D-CA) and Rep. Edward Markey (D-MA) released a "discussion draft" of the American Clean Energy and Security Act of 2009 – a climate change bill that will serve as the starting point for long-delayed congressional action on the world’s most pressing environmental program. CPRBlog asked several Center for Progressive Reform Member Scholars to examine different aspects of the 648-page Waxman-Markey bill. This entry, by Alice Kaswan, examines the bill’s implications for environmental justice issues.
Climate change legislation is obviously essential to protecting the planet from catastrophic global warming. But that’s not all it can do. The fundamental changes in our energy infrastructure that lie ahead provide the opportunity to achieve unfinished business. Climate legislation could not only allow us to achieve greater energy security, as the bill’s name suggests, it could also …
On Tuesday, March 31, House Energy and Commerce Committee Chairman Henry Waxman (D-CA) and Rep. Edward Markey (D-MA) released a “discussion draft” of the American Clean Energy and Security Act of 2009 – a climate change bill that will serve as the starting point for long-delayed congressional action on the world’s most pressing environmental program. CPRBlog asked several Center for Progressive Reform Member Scholars to examine different aspects of the 648-page Waxman-Markey bill. This entry, by Alice Kaswan, examines several issues in the bill, including the issue of co-pollutants (non-greenhouse gas, but nevertheless polluting, emissions), the need for state-federal partnership on transportation and land-use issues related to climate change, and the bill’s provision removing greenhouse gas emissions from EPA’s jurisdiction under the Clean Air Act but apparently allowing states to impose their own clean air requirements in some areas.
Representatives Waxman and Markey’s “discussion …
