Decisions about global warming, clean air and national energy policies are best left to Congress and the President, not the federal courts, according to a March 2 legal brief filed by the American Road & Transportation Builders Association (ARTBA) and its industry allies with the U.S. Court of Appeals for the Second Circuit.

Opening the door for courts to make these decisions could prevent important transportation improvement projects from moving forward in a timely manner, ARTBA said.

Eight states — Connecticut, New York, California, Iowa, New Jersey, Rhode Island, Vermont, Wisconsin — and the City of New York, filed a lawsuit against some of the nation’s leading utility companies under the “public nuisance” laws, which were originally designed to protect property owners from the actions taken by adjoining landowners. The states argued that carbon dioxide emissions travel across state boundaries and asked the utilities to reduce their carbon dioxide emissions by at least 3 percent per year for 10 years.

A federal district court dismissed the lawsuit as being ill-suited for the courts to decide. The states appealed the ruling to the court of appeals.

If the plaintiffs were to succeed, “nuisance” suits could allow the use of the courts to impose regulations restricting emissions without any approval from state or federal legislatures, regulatory agencies, or those being regulated.

Such a “patchwork” of carbon dioxide emissions regulation, ARTBA’s brief argues, would be a completely ineffective way to address the issue of climate change. It also could place a broad spectrum of industries, including transportation construction, at the mercy of regulation through litigation, resulting in delays to highway/transit improvements.

No date has been set by the appeals court for oral arguments.

For more information, visit www.artba.org.

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