U.S. Supreme Court Agrees to Hear Case in which ACA filed Amicus Brief; ACA Submits Separate Amicus to Supreme Court on Contingency Fees

U.S. Supreme Court Agrees to Hear Case in which ACA filed Amicus Brief; ACA Submits Separate Amicus to Supreme Court on Contingency Fees.

On Dec. 6, the U.S. Supreme Court granted the petition for a Writ of Certiorari for a major climate change public nuisance case, American Electric Power v. Connecticut, for which ACA submitted a supportive amicus brief. In translation, the nation's highest court consented to review the case, in which a federal appellate court decided against the utilities. ACA is now part of a joint group of amici parties who will file a brief supporting the arguments before the Supreme Court, to be heard in April 2011.

ACA had filed the amicus brief (as a friend of the court) on behalf of the utilities, urging the U.S. Supreme Court to take this important public nuisance/climate change case. In a surprising move, the U.S. Solicitor General in late August submitted a brief to the Supreme Court in support of the public utility defendant, Tennessee Valley Authority (TVA). The petitioners are defendants who lost a two-judge panel ruling in the U.S. Court of Appeals (2nd Circuit), which said the coalition of states and public interest groups could proceed with their common law public nuisance case intended to force several of the nation's largest coal-fired utilities to reduce their greenhouse gas emissions. The Solicitor General maintained that EPA's regulatory regime for Greenhouse Gas Emissions should preclude states like Connecticut from pursuing their own public nuisance remedies, which will only cloud the situation.

ACA had filed its amicus on Sept. 1 бк the latest in a series of amici briefs in major climate change public nuisance cases. As with its other amici in this arena, ACA expressed its belief to the court that greenhouse gas public nuisance claims are a stretch for acceptable public nuisance torts claims, and that climate change issues should be tackled at the legislative and regulatory level, not by the courts.

Through its Amicus and Legal Tracking System program, ACA chooses select prominent cases each year in which it files an "amicus" or "friend of the court" brief as a show of support for issues that can adversely impact the industry. Specifically, the Amicus Program seeks to prevent court decisions that establish bad precedent or overturn such precedent where it currently exists and advance the legal protection of property due process and liberties that rightfully belong to good faith corporate interests and behavior. Since its 2007 inception, ACA has filed over 15 amicus briefs.

ACA's position in these climate change cases is compelling, as illustrated by a seemingly bellwether decision issued on July 26. In a major victory in the climate change/public nuisance arena, the U.S. Court of Appeals for the 4th Circuit overturned North Carolina Attorney General Cooper's victory in a public nuisance pollution lawsuit against Tennessee Valley Authority, calling his initial win "a flawed ruling." The decision from Judge J. Harvie Wilkinson and joined by two of his peers on the 4th Circuit centers on the fact (stressed ACA's amicus arguments) that there are no real standards to apply judiciously in this realm - thus, that lawsuits are not the way to regulate air quality and that Congress has already recognized this with passage and implementation of the federal Clean Air Act and its amendments. A North Carolina federal district court judge had found that three Tennessee plants and one Alabama plant are causing a public nuisance in North Carolina. Now, the U.S. Solicitor General has made the same argument before the Supreme Court - that EPA's regulatory actions under the Clean Air Act displace common law (public nuisance) causes of action in the climate change arena.

Separately, in November, as part of an industry coalition, ACA submitted to the U.S. Supreme Court a petition for a writ of Certiorari as amicus curiae in support of petitioners Atlantic Richfield Company et al, in Atlantic Richfield v. County of Santa Clara. ACA and other industry groups are asking the nation's highest court to hear a former paint manufacturer's challenge to a California Supreme Court ruling allowing local governments to retain contingency fee counsel to prosecute public nuisance cases. The California Supreme Court in July upheld the contingency fee policy, but ordered limited safeguards бк that a supervising government lawyer retain control of the proceedings бк ACA believes are not meaningful in practice. Beyond that, ACA maintains that the contingency fee arrangements with "control" by a government attorney does not eliminate the inherent due process violations, since the contingency fee agreements improperly tip the scale towards purported "no-cost" public nuisance litigation; and contingent fee agreements improperly affect decisions regarding whether to prosecute an action and whether, and on what grounds, to settle that action.

ACA will continue to take the lead in public advocacy efforts supporting legal reform addressing the increasing abuse of the public nuisance theory in product liability lawsuits, engaging in forums by noted legal advocacy centers and by publishing opinion pieces.

Date Posted: December 16, 2010