Environmentalists are saying the Obama administration “stabbed them in the back.” Utility companies are clinging to the EPA’s power to regulate greenhouse gas emissions as protection against being sued for emitting greenhouse gases. What?

This is what is happening in the nation’s judicial branch and it has created some strange bedfellows. Before we get into who is teaming up with whom, lets do a quick recap.

This all starts with a little thing called “Nuisance Law.” Nuisance law is a part of American common law and it essentially allows someone to sue for causing a “nuisance.” Think of a car-alarm testing center operating next door. While no one is technically coming onto your property to bother you, the center’s use of its property would be seriously interfering with your ability to use your own.

Several years ago a case named AEP v. Connecticut made its way though the U.S. 2nd Circuit Court of Appeals. The only court higher is the U.S. Supreme Court. In the case, a coalition of environmental organizations, states and New York City sued several utility companies for the “public nuisance” caused by the greenhouse gases they emit. The 2nd Circuit ruled that since, at that time, there was no agency to regulate greenhouse gases, that the “nuisance law” could be applied.

Fast-forward to a post-EPA v. Massachusetts world, where the EPA can regulate greenhouse gases, and we have grounds for an appeal of the AEP v. Connecticut case. Still with me? Good, because this week, a Supreme Court brief filed by the Tennessee Valley Authority (TVA) argued why the case should be tossed back to the 2nd Circuit. The brief created odd teammates. For instance:

Obama and Tennessee Valley Authority

The Obama administration’s acting Solicitor General, Neal Katyal, filed the brief on behalf of TVA. While the administration is often regarded to be anti-utility through its support of climate legislation, its direct involvement with the Tennessee Valley Authority’s court brief isn’t going unnoticed. An attorney for the plaintiffs told the New York Times that he “felt stabbed in the back,” by the Obama administration. The administration’s support, in this case for the TVA, is probably less out of goodwill for polluters and more out of support for a strengthened EPA, which brings us to our next odd couple. 

Utility companies and the EPA

Utility companies were the losers when the Supreme Court ruled in 2007 that the EPA could regulate greenhouse gases. Now, they are hiding behind that decision. It’s odd hearing utility companies argue, "the nuisance law" can’t be used as de facto regulation when we all agree the EPA is the authority on greenhouse gas regulation.

Environmentalists and Congress

Environmentalists, feeling publicly betrayed, are expressing a desire for Congress to act on climate policy. If the Supreme Court takes up the AEP v. Connecticut case and allowed the “nuisance law” to prevail, then lawsuits against utility companies would be popping up all across the country. The likely result of such a litigious fervor would probably be Congress having to act on climate policy. But is that really what environmentalists want? With large majorities in Congress, cap-and-trade bills have fizzled and an oil spill bill is gaining no traction. Why favor giving more power to such an impotent body?