Sotomayor climate change case just one of three stalled global warming appeals
In January we commented on three pending appeals with significant implications for tort-based climate litigation. In Friday’s National Law Journal, Marcia Coyle notes that Supreme Court Nominee Sonia Sotomayor is the presiding judge on the Second Circuit panel that heard the appeal in Connecticut v. American Electric Power Co., Inc. (AEP). In AEP, District Court Judge Loretta Preska dismissed the public nuisance case brought by 8 state attorneys general against 5 power companies based on the companies’ greenhouse gas emissions. The court held that the case was non-justiciable because it required “identification and balancing of economic, environmental, foreign policy, and national security interests” of a “transcendently legislative nature.”
Judge Sotomayor’s Second Circuit panel heard oral argument in AEP in June 2006. While Coyle’s NLJ article described the wait for a decision as a “mystery,” it is noteworthy that appellate decisions are also long awaited in Comer v. Murphy Oil Co. and California v. General Motors Corp., both of which also involved lower court dismissals on political question grounds (among others).
Comer is a putative class action against insurance, oil, coal and chemical companies in which plaintiffs alleged that emissions contributed to climate change and thus magnified adverse weather events, including Hurricane Katrina. Comer was docketed in the Fifth Circuit (07-60756) in September 2007 and the appeal was argued on November 3, 2008.
In California v. General Motors, California sued six of the major automakers for allegedly “creating, and contributing to, an alleged public nuisance – global warming.” The district court dismissed the case in September 2007. The appeal was docketed in October in the Ninth Circuit (07-16908) in October 2007. Briefing was completed in August 2008 and oral argument was scheduled for May 8, 2009, but California requested a six month continuance of the argument which was granted on April 6, 2009.
Links to the decisions and appellate briefs in AEP, Comer and General Motors can be found in our earlier post on pending appeals.
In the time these cases have been pending, we have seen a Supreme Court decision that considered EPA’s authority to regulate greenhouse gas emissions, a change in administrations, a changing legislative and regulatory landscape on climate issues (including a proposed EPA endangerment finding), and a change in US involvement in international climate discussions. But with all this change, the “identification and balancing of economic, environmental, foreign policy, and national security interests” described by Judge Preska still looms on a global scale.
http://www.globalclimatelaw.com/admin/trackback/136501
I think a good argument could be made that all of these developments further undermine the prospects for appellants to prevail as there is now actual federal climate change policy that could be interfered with by litigation, enhancing the argument in favor of invoking the political question doctrine. Of course, this litigation may have helped turn up the heat on the politicos, which is all to the good, and litigation may have a continued salutary role in this context.