Gardere Climate Change Lawyer Says Supreme Court Victory Leaves Important Questions Unanswered

HOUSTON, TX, June 22, 2011 (Press-News.org) The announcement this morning of the U.S. Supreme Court's decision in American Electric Power Company Inc. v. Connecticut is a victory for companies opposing public nuisance lawsuits seeking to redress global climate change, according to Houston environmental attorney Richard O. Faulk of Gardere Wynne Sewell LLP. However, he says, the ruling "leaves important questions unanswered."

As counsel for the industry groups represented by Gardere, Mr. Faulk praised the Court's holding that there is no right to pursue public nuisance claims to address global warming under federal law. A copy of the decision can be found at http://www.supremecourt.gov/opinions/10pdf/10-174.pdf. According to the Court, the federal Clean Air Act and the authority it grants to the EPA displace any such federal claims. But the high court refused to decide whether public nuisance claims could be pursued under state law - and sent that issue back to the lower court for further deliberations.

Mr. Faulk, Chair of the Gardere Litigation Department, and John S. Gray, a Houston Partner in the firm's Environmental Practice Group, previously filed a Supreme Court brief on behalf of several clients regarding the merits of the highly controversial case. The attorneys argued that federal courts should not regulate climate change, but instead should defer to the political branches of the federal government. A copy of the amicus curiae brief can be found at http://www.gardere.com/Binaries/Press%20and%20Publications/AmElectricvStConnecticutBrief.pdf.

"Today's decision is consistent with the result Gardere advocated for its clients - a result based on judicial restraint in deference to the political branches of the federal government," says Mr. Faulk. "Unfortunately, the Court only decided the issue under federal law. Now, the lower courts must decide whether these same claims can be tried under state public nuisance laws, or whether they are preempted by federal statutes and regulations." According to Mr. Faulk, "These standard-less claims are equally flawed under state law, but industry must now fight to establish that point."

The case, from the 2nd Circuit Court of Appeals, originally was filed by a group of plaintiffs seeking to expand tort law by claiming that greenhouse emissions from various facilities create a "public nuisance" and contribute to global warming. Defendants argued that setting emissions standards is an exercise best handled by Congress and the EPA, and not the courts.

Gardere's amicus curiae brief in American Electric Power Company Inc. v. Connecticut was filed on behalf of the American Chemistry Council, American Coatings Association, National Association of Manufacturers, National Petrochemical and Refiners Association, Property Casualty Insurers Association of America, and Public Nuisance Fairness Coalition.

Gardere Wynne Sewell LLP, an AmLaw 200 firm founded in 1909 and one of the Southwest's largest full-service law firms, has offices in Austin, Dallas, Houston and Mexico City. Gardere provides legal services to private and public companies and individuals in areas of energy, hospitality, litigation, corporate, tax, government affairs, environmental, labor and employment, intellectual property and financial services.