Key US Supreme Court Case Dismisses Public Nuisance Argument on GHGs
June 22, 2011
By Travis Allan and Zizzo Allan intern Ari Foyle
The United States Supreme Court has come to a long-awaited decision in American Electric Power v. Connecticut, a highly contested case involving several states who sought an injunction requiring various electric utility companies to reduce their greenhouse gas (GHG) emissions.
The lawsuit was filed by eight state attorney generals, the City of New York and three environmental groups against six electric utility companies. The plaintiffs claimed that the GHG emissions constituted a public nuisance by the plaintiffs under federal common law because of the serious dangers they face in a changing climate.
In an 8-0 decision, the US Supreme Court held that the federal common law was displaced on this issue by the US Clean Air Act and recent initiatives aimed at regulating GHG emissions by the US Environmental Protection Agency (EPA).
Jonathan Adler discusses the decision’s focus on the US doctrine of “displacement” which occurs when federal legislation is enacted on a certain issue and thereby displaces federal common law. In this test, the court does not second-guess the quality or quantity of federal action. The court cites a previous decision noting that the issue is “whether the field has been occupied, not whether it has been occupied in a particular manner.”
While this is the end of a number of similar suits based on federal common law, the displacement decision does not mean that state law-based claims will necessarily be pre-empted. The US Supreme Court explicitly refrained from deciding this issue.
A number of commentators wonder whether this decision will impact current congressional debate on the extent to which the EPA should be allowed to regulate GHG emissions.
Carbon-Footprint Labeling: A new Standard in Marketing?
June 22, 2011
Indice Carbone Label
Post by Zizzo Allan intern Ari Foyle and Travis Allan
The practice of identifying and labeling the carbon footprint of various manufactured goods, a sophisticated gloss on green marketing claims, is becoming increasingly popular, according to an article published in The Economist last week. A number of European countries are developing carbon-footprint labeling as a standard for most mass-produced goods, even those that are imported.
The British and French governments are currently leading this effort. Both are helping fund research into carbon-footprint labeling in their respective countries. Britain’s efforts have been significantly aided by the implementation of carbon labels on products by Tesco, Britain’s largest retailer. The French government is engaging in a number of important measures to ensure the success of this project, notably passing of the Grenelle 2 law in 2010, which makes environmental labeling mandatory in France. Both countries have also had a significant role in efforts to implement carbon-footprint labeling at the global level.
Carbon Trust Label
Interestingly, some commenters believe that the most important outcome of carbon-footprint labeling has not been through increased consumer awareness.
A 2009 report conducted by Dr. Paul Upham and Dr. Mercedes Bleda at the Tyndall Centre at the University of Manchester posits:
One of the major critiques of carbon-footprint labeling is that much of the labels currently on the market address only the manufacturing stage of a product’s lifecycle, which doesn’t usually reveal the full greenhouse gas emissions that are associated with certain products when their use and disposal is considered.
As an example, there are greenhouse gas emissions associated with the production of a bottle of shampoo. Taking a lifecycle approach, however, reveals that most of the greenhouse gas emissions generated in relation to shampoo stem from the length of a consumers’ shower and how hot their water is. While it is important for consumers to be aware of full lifecycle emissions, it wouldn’t be rational to make purchasing decisions between two brands of shampoo based on different assumptions about consumer showering behavior.
To address these issues, the Economist reports that Carbon Trust’s carbon labels now incorporate use-phase emissions, which are estimated with statistical assumptions about consumer behaviour.
In Canada, an NGO called Carbon Counted has partnered with a number of companies, including Loblaws, to perform carbon-footprint labeling.
