Supreme Court Leaves GHG Regulation to EPA



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The United States Supreme Court today threw out a lawsuit brought by several states, which targeted the five largest emitters of carbon dioxide in the United States:  American Electric Power Co., Duke Energy Corp., Southern Co. Inc., Xcel Energy Inc., and the Tennessee Valley Authority.  The suit sought to have the courts impose restrictions on greenhouse gas emissions from the electric utilities, arguing that they constitute a public nuisance. 


In an 8?0 ruling (Justice Sotomayor did not participate), the Court held that regulation of greenhouse gases should be left to the Environmental Protection Agency ("EPA"), rather than the federal courts, noting that the Clean Air Act and the action the Act authorizes the EPA to take displace any federal common-law right to seek abatement of carbon dioxide emissions from fossil fuel-fired power plants. Justice Ruth Bader Ginsburg, who wrote the opinion, said the EPA was "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.'' 


The opinion, American Electric Power, Inc., et. al v. Connecticut, et. al, is available online at:


Should you have any questions about this alert, please contact Kathy Milenkovski.  For general questions involving energy law, please contact the Energy Team at Steptoe & Johnson PLLC.