Gardere’s Faulk, Gray Challenge ‘Standardless Liability’ in U.S. Supreme Court

Houston (I-Newswire) February 8, 2011 - Houston environmental lawyer Richard O. Faulk, Chair of the Litigation Department at Gardere Wynne Sewell LLP, and John S. Gray, a Houston Partner in the firm’s Environmental Practice Group, have filed a brief with the U.S. Supreme Court on the merits of the highly controversial case of American Electric Power Company, Inc. v. Connecticut currently before the Court.

In a decision supported by an earlier brief filed by Gardere, the High Court agreed in December to review a ruling by a lower federal court that allowed public authorities and interest groups to sue power companies for causing global warming. Allegedly, the emission of “greenhouse gases” by the companies was a “public nuisance” that should be controlled by court orders issued by individual federal courts around the country – not EPA regulations or Congressional statutes.

In accepting the power companies’ appeal, the Supreme Court agreed to decide whether global warming was a “political question” that courts lacked the standards and resources to decide.

“Such a standardless exercise is not jurisprudential,” note Mr. Faulk and Mr. Gray in the current brief. “Instead, it transforms courts across the United States into regulatory agencies, requires them to devise ad hoc standards for each case, applies ex post facto rules to impose liability, and then mandates enforcement using the threat of contempt to motivate compliance. Such a proceeding may be called a trial, but it is not.”

Mr. Faulk and Mr. Gray argue that allowing courts to resolve climate change liabilities on a “case by case” basis would create a “confused patchwork of standards, to the detriment of industry and the environment alike.” Since courts do not have “the technical and scientific expertise necessary to create standards and rules to resolve the controversy justly,” they “should defer to the political branches of government.” Otherwise, they will engage in a “standardless, discretionary, and ultimately, lawless exercise that exceeds legitimate judicial authority.”

Gardere’s brief in American Electric Power Company, Inc. v. Connecticut was filed on behalf of amicus curiae The American Chemistry Council, The National Association of Manufacturers, The American Coatings Association, The Property Casualty Insurers Association of America, and the Public Nuisance Fairness Coalition. The brief can be found at http://www.gardere.com/Binaries/Press%20and%20Publications/Merits%20Amicus%20Brief%20in%20AEP%20v.%20Connecticut.pdf.

Oral arguments in the case will be scheduled this spring, with a decision expected in the summer.

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.

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