In the seemingly endless climate change debate, the regulation of greenhouse gases (GHGs) is a contentious issue among scientists, advocacy groups, lawmakers and businesses. Opinions are strong and varied as to how GHG emissions affect the environment and to what extent they should be controlled.
A trial court dismissed Connecticut v. AEP, saying it presented political questions that "are not the proper domain of judges" and that the "scope and magnitude of the relief Plaintiffs seek reveals the transcendently legislative nature of this litigation."
But on appeal, the 2nd Circuit allowed the plaintiffs' nuisance claims to proceed. When the appeals court denied the defendants' petition for en banc review, the utilities filed a petition for certiorari, which the Supreme Court granted on Dec. 6, 2010.
Legal experts and politicians have responded to that question with a resounding no. They assert that GHG regulation is up to the government, not the courts.
Some businesses, states and lawmakers have filed lawsuits challenging the EPA's findings and rules--and ultimately its power grab. And when the new Congress convened in January, Republican members quickly proposed bills that would cut EPA funding and prevent the agency from regulating GHGs.
Justice Sonia Sotomayor has recused herself from Connecticut v. AEP because she heard arguments for the case when it was in the 2nd Circuit. With eight justices in the courtroom, there's a chance for a split decision, which would leave the 2nd Circuit's decision intact. That result could lead to courts swamped with common law nuisance suits against virtually every industry in the U.S.