*

Trump administration to repeal an Obama-era scientific

finding

*

Policy reversal could lead to a surge in 'public nuisance'

lawsuits

*

Legal shield created by Supreme Court could unravel

By Jan Wolfe

Feb 11 (Reuters) - The Trump administration's

imminent repeal of an Obama-era scientific finding that

greenhouse gases pose a public health threat could open up a new

pathway for filing lawsuits against power-plant operators and

other companies.

Legal experts said the policy reversal could lead to ​a surge

in lawsuits known as "public nuisance" actions, a pathway that

had been blocked following ‌a 2011 Supreme Court ruling that

regulation of greenhouse gas emissions should be left in the

hands of the Environmental Protection Agency instead of the

courts.

Now that the EPA is abandoning that regulatory effort, ⁠the

legal shield created by the 2011 decision will likely unravel,

legal experts said.

"This may be another classic case where overreach by the

Trump ⁠administration comes back to bite it," said Robert

Percival, a University of Maryland environmental law professor.

The Environmental ‌Protection Agency is set this week ‌to repeal a

2009 scientific determination known as the endangerment finding,

which has been the foundation for federal climate regulations.

The endangerment finding is what led the EPA to take action

under the ​Clean Air Act of 1963 to curb emissions of carbon

dioxide, methane, and ‌four other heat-trapping air pollutants

from vehicles, power plants and other industries.

EPA Administrator Lee Zeldin has called the rescission of

the endangerment finding "the largest act of deregulation in the

history of the United States."

Power companies have generally favored President ​Donald Trump's

deregulatory agenda, but have expressed concern about the repeal

of the ​endangerment finding triggering ‌a wave of lawsuits.

The Edison Electric Institute, which represents publicly

traded electric utilities, said in September that rescinding the

endangerment finding comes with the "potential for increased

litigation alleging common-law claims, regardless of the merits

of those suits."

'NEW FRONT' OPENING

U.S. courts have long recognized ⁠a legal theory known as

"public nuisance," which prohibits activities that unreasonably

interfere with the health and safety of a community.

Public nuisance lawsuits ⁠are typically brought by state and

local governments, and seek to make the party responsible for

the nuisance pay to abate, or fix, the condition.

The cases are hard to win, in part because of difficulties

in proving direct causation between a specific defendant's

emissions and particular climate harms. But legal experts have

said they are one potential tool for environmental activists to

hold greenhouse gas emitters liable for climate harms.

In a 2004 lawsuit, California and ⁠five other states ‌alleged

that big power companies had created a public nuisance by

contributing to climate change. The defendants included ‌American

Electric Power and Xcel Energy ( XEL ) .

The case eventually ended up before the U.S. Supreme Court,

which ruled against the six states in a unanimous 2011 ⁠decision.

Writing for the court, Justice Ruth Bader Ginsburg said

regulating greenhouse gases should be left to EPA under the

Clean Air Act. That law and subsequent EPA actions like the

endangerment finding, Ginsburg wrote, "displace the claims the

plaintiffs seek to pursue."

That 2011 decision allowed power companies to escape public

nuisance lawsuits filed in federal courts, though some cases

brought in state court have survived.

The policy reversal could give public nuisance cases a new

lease on life, legal experts said.

"This has the potential to change the stakes of the game,"

said University of Pennsylvania law professor Sarah Light. "If

the Clean Air Act no longer applies to greenhouse gas emissions,

then there's no ​comprehensive statutory scheme in which Congress

intended to displace nuisance claims, so they would likely be

able to proceed in court."

Jenner & Block environmental lawyer Meghan Greenfield agreed

that a "new front" for lawsuits may be opening up.

"This is an area where things had been settled for the past

15 years, and, ​especially as the EPA steps out of this space for

regulation, ‌you can imagine others wanting to push those fronts

ever harder," Greenfield said.