Today, Womble Carlyle attorneys John Sweeney, Sky Woodward and Kevin Mattingly filed an amicus curiae brief in the U.S. Supreme Court in American Electric Power Company, Inc., et al., v. State of Connecticut, et al, a landmark environmental regulation case. The brief was filed on behalf of DRI – The Voice of the Defense Bar. Sweeney serves as a National DRI Director and as Immediate Past Chair of DRI’s Climate Change Litigation Task Force.
Eight states (California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont and Wisconsin), plus New York City and several environmental groups, filed suit seeking to use the federal courts to regulate greenhouse gas emissions as public nuisances under federal common law. The end result would be court-imposed emission caps on carbon dioxide emissions.
In this amicus brief, Sweeney, Woodward and Mattingly argue that such a role is not appropriate for the courts. Instead, they say greenhouse gas regulation should be addressed first to Congress or the Environmental Protection Agency. The Obama Administration has agreed with this position, saying the legislative and executive branches are the proper venue for deciding these issues.
“Singling out these five utility companies is legally dubious and an ill-suited avenue for tackling global warming issues,” Sweeney said. “The Supreme Court’s review of this case should reinforce and clarify existing precedent on the appropriate roles for the courts, legislature, and regulatory bodies in climate change issues.”
So far, lower courts have been split on this issue. The U.S. District Court for the Southern District of New York agreed with the defendants that judicial relief was not appropriate. In all, four federal trial courts have reached the same conclusion when faced with similar questions. However, the U.S. Court of Appeals for the Second Circuit disagreed, ruling that federal courts could regulate greenhouse gas emissions and punish those who violate those standards.
“Global warming issues are rightly decided by the federal agencies created to regulate them, and by Congress, which is elected to decide such controversial matters,” Woodward said. “Interested parties should address their grievances to the EPA and Congress, not the federal courts.”
This is the second friend of the court brief that Woodward and Sweeney have authored for the U.S. Supreme Court in the past two years. In 2009, they authored an amicus curiae brief in support of the Petitioners in Otis T. McDonald, et al. vs. The City of Chicago, et al. This landmark civil rights case held that the fundamental, individual right to keep and bear arms, as guaranteed by the Second Amendment, is a right afforded to citizens of every state, through Fourteenth Amendment incorporation.