On December 6, 2010 the U.S. Supreme Court granted certiorari review of the Second Circuit Court of Appeals decision in Connecticut v. American Electric Power Co., et al., 582 F.3d 309 (2d Cir. 2009) (September 21, 2009). http://www.globalclimatelaw.com/uploads/file/05-5104-cv_opn(1).pdf
At issue in the case is whether large electric utilities can be sued under federal or state common law for maintaining a public nuisance by contributing to global warming. If they can, then those utilities may be faced with numerous judges attempting to fashion and order various and contradictory emission control measures in conflict with the terms and conditions of federal air permits. A court in North Carolina could order a plant to install one brand of thermal oxidizer and a particular type of coal while another court might order a different brand of T.O. or a different grade of coal, or even order that the T.O. be operated at a certain temperature. The result could be a conversion of the judiciary to a regulatory body.
First, some history. In July 2004, eight state attorneys general, the City of New York, and three land trusts filed two similar complaints in the United States District Court for the Southern District of New York alleging that six electric power companies contributed up to 10% of the emissions caused by human activities in the United States and therefore contribute to global warming. The theory that the Plaintiffs pursued was that the defendants are liable for creating, contributing to, or maintaining a public nuisance under federal common law (or, in the alternative, state common law). They sought permanent injunctive relief requiring defendants to abate the nuisance by capping and then reducing their emissions “by a specified percentage each year for at least a decade.”
The power companies moved to dismiss the complaints for lack of jurisdiction and for failure to state a claim upon which relief can be granted. The district court granted defendants’ motions, holding that both cases “present nonjusticiable political questions” because their resolution would “require identification and balancing of economic, environmental, foreign policy, and national security interests.”
On September 21, 2009, a two-judge panel of the Second Circuit reversed. http://caselaw.findlaw.com/us-2nd-circuit/1105245.html Interestingly, one of the Second Circuit judges who heard oral argument was Justice Sotomayor. She did not sign the opinion as she had already been elevated to the Supreme Court by the time the opinion was issued. The Second Circuit held that the district court erred in dismissing the two complaints on the ground that they presented non-justiciable political questions. The court also held that the States have parens patriae and Article III standing, in their quasi-sovereign and proprietary capacities respectively, and New York City and the Trusts have Article III standing. The court concluded by stating that “All parties have stated a claim under the federal common law of nuisance, which we find is grounded in the definition of “public nuisance” found in the Restatement (Second) of Torts § 821B” and that “Federal statutes have not displaced Plaintiffs’ federal common law of nuisance claim.”
The Administration filed a brief asking for cert on behalf of the Tennesee Valley Authority, which is a defendant and government entity. The Solicitor General identified the following legal issues:
1. Whether plaintiffs’ federal common-law nuisance claims are barred by principles of prudential standing.
2. Whether, assuming plaintiffs have alleged cognizable public-nuisance claims under federal common law, that federal common law has been displaced in this context by the Clean Air Act and associated actions of the United States Environmental Protection Agency.
The remaining industry petitioners for cert. identified these legal issues:
1. Whether States and private parties have standing to seek judicially-fashioned emissions caps on five utilities for their alleged contribution to harms claimed to arise from global climate change caused by more than a century of emissions by billions of independent sources.
2. Whether a cause of action to cap carbon dioxide emissions can be implied under federal common law where no statute creates such a cause of action, and the Clean Air Act speaks directly to the same subject matter and assigns federal responsibility for regulating such emissions to the Environmental Protection Agency.
3. Whether claims seeking to cap defendants’ carbon dioxide emissions at “reasonable” levels, based on a court’s weighing of the potential risks of climate change against the socioeconomic utility of defendants’ conduct, would be governed by “judicially discoverable and manageable standards” or could be resolved without “initial policy determination[s] of a kind clearly for nonjudicial discretion.” Baker v. Carr, 369 U.S. 186, 217 (1962).