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High court tosses out suit against power companies

WASHINGTON – The fight over global warming and whether to limit carbon pollution from coal-fired power plants must be resolved by the Environmental Protection Agency, the Supreme Court said, killing a suit in federal court brought against the nation’s five largest electric power companies.

The 8-0 decision Monday was a setback – but not a surprise – for environmentalists. The outcome puts more pressure on the Obama administration and the EPA to follow through with promises to propose new regulations in the fall that will restrict carbon pollution from power plants.

The EPA under President Barack Obama has already adopted stricter emissions standards for cars and trucks.

Eight states had filed suit against Midwest and Southern power producers based on the old doctrine that a state or a private party could file a “public nuisance” suit against another party for polluting its air or water.

In throwing out the “nuisance” suit, Justice Ruth Bader Ginsburg said it poses a classic “who decides” question. In this instance, she said, it is clear environmental policy should be decided by the EPA, not by a single federal judge overseeing a legal dispute.

In explaining why the suit must end, Ginsburg pointed out that the court in 2007 had ruled that the EPA had the authority to regulate greenhouses gases under the Clean Air Act. That decision undercut the need for a separate lawsuit dealing with the same problem, she said.

“The EPA is currently engaged in a rulemaking to decide whether the agency should set limits on emissions from domestic power plants. The Clean Air Act, in our judgment, leaves no room for a parallel track” which would call upon a judge to decide on the need for regulations, she said.

Peter Keisler, the former Justice Department lawyer who represented power companies, said the ruling permits the companies to continue to “provide vital services to the public … without the threat of federal ‘climate change tort litigation.’ ”


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