The US Court of Appeals for the Second Circuit has revived two tort suits seeking abatement of carbon dioxide emissions from coal-fired electric power plants. Connecticut v. American Electric Power Co. Inc., No. 05-5104-cv (2d. Cir. Sept. 21, 2009). The 139-page opinion leaves the merits to be resolved in future proceedings, but could spur additional climate lawsuits and may serve as a catalyst for new federal climate laws or regulations.

Two groups of plaintiffs filed the suits in 2004. The first includes eight states (Connecticut, New York, California, Iowa, New Jersey, Rhode Island, Vermont and Wisconsin) plus New York City. The second consists of three land trusts. According to the complaints, the six defendants operate fossil fuel-fired generating plants which are located outside the plaintiff states other than Wisconsin and that allegedly account for about 10 percent of man-made US carbon dioxide emissions. The plaintiffs claim that the defendants’ emissions are contributing to the public nuisance of "global warming," for which the defendants are jointly and severally liable under the federal common law of nuisance, or in the alternative, the nuisance law of the states where the plants operate. For a remedy, the complaints ask for an injunction to abate the alleged nuisance by capping the defendants’ carbon dioxide emissions and then reducing them each year for at least a decade. In 2005, the United States District Court for the Southern District of New York dismissed the claims as “non-justiciable” in that they presented “political questions.” 

More than three years after hearing oral argument, an appellate panel of two judges (each of whom was nominated by a Republican president) now has reversed that decision. The third member of the panel had been Judge Sonia Sotomayor, but she did not participate in the decision after her nomination to the US Supreme Court. 

Drawing upon the Supreme Court’s 1962 decision in Baker v. Carr, the Second Circuit ruled that the plaintiffs’ claims had none of the characteristics of a political question that would impermissibly inject the judiciary into the activities of the other two branches of the US government. The court’s rationale was largely as follows: 

  • The defendants presented no argument showing that the Constitution commits carbon dioxide regulation to Congress.
  • The lawsuits do not implicate the president’s foreign policy authority since the plaintiffs are proceeding solely against domestic entities and are not looking for a global solution.
  • Manageable standards for resolving the claims are available because federal courts regularly resolve complex nuisance claims.
  • The common law could provide a remedy as well, especially when Congress had failed to act.
  • Judicial resolution of the claims would not interfere with an existing political decision. 

Having concluded that the plaintiffs had presented a justiciable claim, the Second Circuit then addressed several arguments that the district court did not reach. Each of the plaintiffs was found to have standing to pursue its claims. Further, the court ruled that both the state and non-state plaintiffs satisfied the criteria for bringing a claim under the federal common law of nuisance. In particular, “the fact that other persons” contributed to the nuisance was not “a bar to the defendant’s liability for his own contribution” (quoting the Restatement (Second) of Torts). Nor did the harm need to be immediate to be actionable. Most importantly, regulation of carbon dioxide under the Clean Air Act and other federal statutes, in the court’s view, has not advanced sufficiently to displace the federal common law of nuisance. The opinion notes that the US Environmental Protection Agency (EPA) had proposed a Clean Air Act endangerment finding for mobile sources only last April, had not done so for other sources, and had not yet issued greenhouse gas regulations, despite the Supreme Court ruling more than two years ago in Massachusetts v. EPA that carbon dioxide was an air pollutant. Pending completion of the “rulemaking process,” the appellate judges refused to “speculate as to whether the hypothetical regulation” of such gases under the Clean Air Act would address the plaintiff’s issue, “which is otherwise governed by federal common law.”

The Second Circuit did not reach the merits of the case, and was ruling at a stage in the litigation when a court is to accept as true all the allegations in the plaintiffs’ complaints. Nevertheless, the opinion makes a number of sweeping statements suggesting that remedies for climate change—a worldwide issue—may be found through the doors of the federal courthouses because greenhouse gas emissions are just like any other release of a pollutant. At least two other federal “global warming” cases, based on the common law of torts, currently are pending. One, Comer v. Murphy Oil, was dismissed on political question grounds and has been appealed to the Fifth Circuit. If American Electric Power stands, the result could be a flood of suits from states and individuals asking for damages or judicially imposed emission controls. It is difficult to imagine how a federal district court would be equipped to fashion emissions controls for a myriad of sources case-by-case, if those suits ultimately were to be successful (a result which is far from certain). But the specter of such future litigation could give impetus to new federal requirements to “displace” the federal common law of nuisance.

The American Electric Power defendants do have the opportunity to appeal, either to the Second Circuit sitting as a whole and/or to the Supreme Court. If the case does reach the Supreme Court, its ultimate resolution could depend in part on whether Justice Sotomayor decides to recuse herself, given her involvement in the Second Circuit case. During the oral arguments, she observed as follows: “I have absolutely no idea about the science of global warming. . . .But if the scientists are right, we have relegated ourselves to killing the world in the foreseeable future, not in centuries to come, but in a very close timeframe. At some point, someone is going to have to say stop. I don’t know who is going to do it.”

For more information about any of the matters discussed in this Client Alert, please contact Roger W. Patrick at +1 202 263 3343 or David B. Finnegan at +1 202 263 3301.

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