Acting Solicitor General, Neal Katyal, filed a brief with the Supreme Court last week, asking the Court to vacate the 2nd Circuit's ruling in American Electric Power v. Connecticut, and to remand the case for reconsideration in light of the EPA's progress in implementing greenhouse gas regulations. The move reportedly surprised the plaintiffs and environmental groups who were hoping for the Obama administration's support in the case, which seeks to impose an injunction on six of the largest carbon emitters in the country.
AEP v. Conn. is a nuisance lawsuit brought by eight states, three non-profit land trusts, and New York City against a handful of the largest power producers in the country. The plaintiffs have asked the courts to impose an injunction on the defendants to restrict their carbon emissions. As previously blogged, the case was initially dismissed by the Southern District of New York on political question grounds, but reinstated by the Second Circuit last fall.
Similar cases have been filed in the 4th, 5th, and 9th Circuits. In July, the 4th Circuit reversed a district court decision requiring the immediate installation of emission control equipment at four power plants in Alabama and Tennessee, and ordered the district court to dismiss the case for essentially the same reasons argued by the Solicitor General in AEP v. Conn. In the 5th Circuit, an initial decision to reinstate a climate change case was vacated on highly unusual procedural grounds as we explained here. The 9th Circuit has not yet ruled on the Northern District of California's dismissal of similar claims in Native Village of Kivalina v. ExxonMobil Corp.