PDF《Supreme Court of the United States》

NO.

10-174 In the Supreme Court of the United States AMERICAN ELECTRIC POWER COMPANY INC., ET AL., PETITIONERS, v. STATE OF CONNECTICUT, ET AL., RESPONDENTS. On Writ of Certiorari to the United States Court of App ond Circuit eals for the Sec BRIEF OF CHEVRON U.S.A. INC., SHELL OIL COMPANY, CONOCOPHILLIPS, E.I. DU PONT DE NEMOURS &

COMPANY, AND EDISON INTERNATIONAL AS AMICI CURIAE IN SUPPORT OF PETITIONERS DANIEL P. COLLINS BENJAMIN MARO MUNGER, TOLLES &

OLSON LLP

355 S. Grand Ave., 35th Fl. Los Angeles, CA

90071 (213) 683-9100 Counsel for Shell Oil Co. PAUL D. CLEMENT Counsel of Record ASHLEY C. PARRISH KING &

SPALDING LLP

1700 Pennsylvania Ave., NW Washington, DC

20006 pclement@kslaw.com (202) 737-0500 Counsel for Chevron U.S.A. Inc. February 7,

2011 *additional counsel listed on inside cover Additional counsel: RAYMOND MICHAEL RIPPLE DONNA L. GOODMAN DUPONT COMPANY Legal/D-7012

1007 Market St. Wilmington, DE

19898 (302) 773-3072 Counsel for E.I. du Pont de Nemours &

Co. RUSSELL C. SWARTZ Vice President and Associate General Counsel SOUTHERN CALIFORNIA EDISON COMPANY

2244 Walnut Grove Ave. Rosemead, CA

91770 (626) 302-3925 Counsel for Edison International ROBERT MEADOWS TRACIE J. RENFROE JONATHAN L. MARSH KING &

SPALDING LLP

1100 Louisiana St., Suite

4000 Houston, TX

77002 (713) 751-3200 Counsel for Chevron U.S.A. Inc. ANDREW B. CLUBOK SUSAN E. ENGEL KIRKLAND &

ELLIS LLP

655 Fifteenth St. N.W. Washington, D.C.

20005 (202) 879-5000 Counsel for ConocoPhillips i QUESTIONS PRESENTED The court of appeals held that States and private plaintiffs may maintain actions under federal common law that defendants―in this case, five electric utilities―have created a public nuisance by contributing to global warming, and may seek injunctive relief capping defendants'

carbon dioxide emissions at judicially determined levels. The questions presented are: 1. Whether States and private parties have standing to seek judicially fashioned emissions caps on five utilities for their alleged contribution to harms claimed to arise from global climate change caused by more than a century of emissions by billions of independent sources. 2. Whether a cause of action to cap carbon dioxide emissions can be implied under federal common law where no statute creates such a cause of action, and the Clean Air Act speaks directly to the same subject matter and assigns federal responsibility for regulating such emissions to the Environmental Protection Agency. 3. Whether claims seeking to cap defendants'

carbon dioxide emissions at reasonable levels, based on a court'

s weighing of the potential risks of climate change against the socioeconomic utility of defendants'

conduct, would be governed by judicially discoverable and manageable standards or could be resolved without initial policy determination[s] of a kind clearly for nonjudicial discretion. Baker v. Carr,

369 U.S. 186,

217 (1962). ii TABLE OF CONTENTS QUESTIONS PRESENTED i TABLE OF CONTENTS.ii TABLE OF AUTHORITIES iv INTEREST OF AMICI CURIAE

1 INTRODUCTION AND SUMMARY OF ARGUMENT

3 ARGUMENT

7 I. Article III Standing Requirements Preclude Efforts To Hold A Discrete Group Of Individual Companies Responsible For A Global Phenomenon.7 A. The Second Circuit'

s Decision Is Based On A Fundamental Misreading Of Massachusetts v. EPA.9 1. Massachusetts v. EPA Does Not Support The Decision Below.10 2. Decisions Interpreting The Clean Water Act Do Not Support The Decision Below.13 B. Mere Contribution To A Global Phenomenon Cannot Satisfy Article III'