Attorney General Sam S. Olens yesterday filed with 22 other states [1] an amicus brief in the U.S. Supreme Court arguing that plaintiffs cannot regulate carbon dioxide emissions by litigation, and instead must go through the normal political process to resolve such a hotly contested policy debate. The brief, filed in American Electric Power Company Inc. et al. v. Connecticut, et al., is on appeal from the U.S. Court of Appeals for the Second Circuit.

The plaintiffs, who brought suit against several power companies, assert that excessive carbon dioxide emissions by certain power plants sufficiently contribute to global warming so as to constitute a “public nuisance,” and that the federal judiciary should by judicial decree limit those emissions. However, the utility companies have been operating under statutes and regulations that expressly allow them to operate as they have. “The plaintiffs are attempting to use the power of federal courts to advance their agenda on the highly political issue of global climate change,” said Attorney General Sam Olens. “Each defendant company already operates under state-issued pollution control permits, which is allowed by both state and federal law. The courts are not equipped to make policy as requested by the plaintiffs, especially on such a hotly disputed political issue.”

The amicus brief principally focuses on the “political question doctrine,” and the Second Circuit’s failure to apply that doctrine properly to the case. The political question doctrine is a limitation on the federal judiciary that seeks to prevent courts from deciding issues that are more political than legal in nature. In particular, the doctrine holds that a federal court should refrain from exercising jurisdiction in a case that involves complex public policy issues, could result in long-term consequences significantly affecting broad segments of society, and is fundamentally not suited for resolution in the adversarial process of the judicial system.

[1] Alabama, Alaska, Arizona, Arkansas, Colorado, Florida, Idaho, Indiana, Kansas, Kentucky, Louisiana, Missouri, Nebraska, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Utah, West Virginia, and Wyoming joined Georgia in filing the amicus brief.