For immediate release: Apr 18, 2011
Posted by: [Attorney General]
Contact: Bryan Corbin
Phone: (317) 233-3970

Indiana AG: Greenhouse gas case blurs separation of powers

Opinion piece by Indiana Attorney General Greg Zoeller

NOTE: This opinion piece by Indiana Attorney General Greg Zoeller has been published in several Indiana and regional newspapers and trade publications.

Indiana AG: Greenhouse gas case blurs separation of powers

By Greg Zoeller
Indiana Attorney General

Volatile issues of global climate change, energy-sector jobs, judicial activism and the roles of federal government branches will collide April 19. That's when the United States Supreme Court hears arguments in a case with a potential to affect indirectly all Americans who use electricity.

The case is American Electric Power Co. Inc. v. Connecticut. At issue is whether states and private plaintiffs can sue utility companies for producing greenhouse gases that contribute to global climate change.

The state I represent in court, Indiana, is not a party in this lawsuit. Nonetheless, as Indiana's attorney general, my duty is to alert the Supreme Court to Indiana's legal concerns. To raise our arguments, we authored a 28-page amicus brief that 22 other states signed, and filed it with the nation's highest court.

The facts of the AEP v. Connecticut case and its procedural history are complicated and the underlying science is technical. But at its core is a concept that dates to the very founding of our Constitution: the separation of powers of our three branches of government.

In our brief we contend federal district courts are not the venues to decide inherently political questions that belong instead within the legislative and executive branches.

Consider how this case began: Connecticut filed suit against six utility companies alleging their carbon dioxide emissions from coal-fired electric-generating plants contribute to global climate change. Connecticut, five other states and New York City alleged a "public nuisance" under common law and asked the federal court to determine and impose limits on the amounts of CO2 emitted from utility smokestacks.

As much as we respect the federal courts, it is neither appropriate nor practical for an appointed trial court judge to devise under common law complicated regulations for a utility industry already subject to considerable regulation as well as marketplace fluctuations and rapidly-changing technology.

That duty -- legislating -- belongs instead to the people's elected representatives in Congress. Answerable to their constituents, congressional legislators must balance competing interests -- weighing the climatic impact of additional carbon emissions against the economic impact of higher energy costs passed on to consumers and businesses through a patchwork of regulations on coal-fired utilities. Congress also balances interests by delegating some, though not all, of its legislative authority in this area to an executive branch agency, the U.S. Environmental Protection Agency, to implement broad policy that state governments then interpret and enforce.

We have seen in recent congressional debates over EPA regulation and federal budget priorities the push-pull between the legislative and executive branches over greenhouse gas emissions. That's where this intense discussion belongs: between the legislative and executive.

Regrettably, when the U.S. 2nd Circuit Court of Appeals heard this case, it found that Connecticut and other plaintiffs had legal standing to sue the six utilities for allegedly contributing to global climate change and would have allowed federal judges to set limits on greenhouse gases under common law.

Indiana and 22 other states oppose the 2nd Circuit's ruling, and in our brief we asked the U.S. Supreme Court to overturn it. There is no point in having a separation of powers in our federal government if the lines of separation are blurred and faint. Our system of checks and balances is eroded if any of the three branches overreaches and strays beyond its authority.

Although we are mindful of concerns about atmospheric pollution and energy-cost impact on jobs, the underlying legal issue for Indiana and 22 other states in filing our brief is to urge the Supreme Court to remind lower courts of their proper role. The Constitution's separation of powers has served us well for 224 years; let's not bend it to serve today's narrow interests.

Greg Zoeller is Attorney General of the State of Indiana.



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