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Trump's repealing of climate regulation opens a "new front" for litigation

The Trump administration's impending repeal of an Obama-era finding that greenhouse gasses pose a threat to public health could lead to a new avenue for filing suits against power-plant operators, among other companies.

Legal experts warned that the policy reversal could lead to an increase in "public nuisance" lawsuits, which were previously blocked by the Supreme Court's 2011 ruling that the Environmental Protection Agency should regulate greenhouse gas emissions instead of courts.

Legal experts say that now that the EPA has abandoned this regulatory effort, it is likely that the legal shield created in 2011 will unravel.

Robert Percival is a University of Maryland professor of environmental law. He said, "This could be another case of overreach on the part of the Trump administration that comes back to bite them." This week, the Environmental Protection Agency will repeal the 2009 scientific determination known as the endangerment findings that was the basis for federal climate regulations. The endangerment determination is what led the EPA under the 1963 Clean Air Act to take action to curb emissions from cars, power plants, and other industries.

EPA Administrator Lee Zeldin called the revocation of the endangerment -finding "the biggest act of deregulation" in the history the United States. The power companies generally support President Donald Trump's deregulation agenda. However, they are concerned that the repeal of endangerment findings will trigger a slew of lawsuits.

In September, the Edison Electric Institute (which represents publicly traded utilities) said that the revocation of the endangerment determination could lead to "an increase in litigation alleging common-law claims regardless of their merits."

'NEW ?FRONT' OPENING

The U.S. courts recognize a legal concept known as "public nuisance," that prohibits actions that interfere unreasonably with the safety and health of a group.

State and local governments typically bring public nuisance lawsuits to force the person responsible to pay for abating or fixing the nuisance.

These cases are difficult to win in part due to the difficulty in proving a direct causal link between an individual defendant's emission and a particular climate harm. Legal experts say they could be a tool that environmental activists can use to hold greenhouse gas producers responsible for climate harms.

California and five other state alleged in a lawsuit filed in 2004 that the big power companies were responsible for creating a public nuisance through their contribution to climate change. American Electric Power, Xcel Energy and other defendants were named.

In 2011, the U.S. Supreme Court unanimously ruled that the six states were wronged.

Justice Ruth Bader Ginsburg wrote for the court that regulating greenhouse gases should be left to EPA under the Clean Air Act. Ginsburg wrote that the law and subsequent EPA action, such as the endangerment findings, "displaces the claims the Plaintiffs wish to pursue."

The 2011 ruling allowed power companies to avoid public nuisance lawsuits brought in federal court, although some cases brought in state courts have survived.

Legal experts say that the policy change could give cases of public nuisance a "new lease on live",

Sarah Light, a law professor at the University of Pennsylvania, said that this could change the stakes of a game. If the Clean Air Act does not apply to greenhouse gas emissions, there is no comprehensive statutory system in which Congress intended to displace nuisance cases, so they could likely?proceed? in court.

Meghan Greenfield, an environmental lawyer at Jenner & Block, agreed that a new front for lawsuits could be opening.

Greenfield stated that "this is a space where things have been settled over the last 15 years and you can imagine other wanting to push these fronts even harder" as the EPA leaves this area for regulation.

(source: Reuters)