Global Climate Law Blog : Global Climate Law Blog : Published by Howrey Law Firm : Climate Attorneys and Environmental Lawyers

To recap, eight state attorneys general, the City of New York, and three land trusts sued six electric power companies based on their greenhouse gas emissions. Plaintiffs sought abatement of defendants’ carbon dioxide emissions on the grounds that those emissions contribute to global warming, which, plaintiffs allege, constitutes a “public nuisance.” 

District Court Judge Loretta Preska originally dismissed the lawsuit on the grounds that it presented non-justiciable political questions, finding that the case required “identification and balancing of economic, environmental, foreign policy, and national security interests” of a “transcendently legislative nature.”

After a long delay that saw then-Second Circuit Judge (and panelist) Sotomayor elevated to the Supreme Court, the US Court of Appeals for the Second Circuit vacated and remanded Judge Preska’s ruling, holding that “(1) Plaintiff-Appellants’ claims do not present non-justiciable political questions; (2) Plaintiffs-Appellants have standing to bring their claims; (3) Plaintiffs-Appellants state claims under the federal common law of nuisance; (4) Plaintiffs-Appellants’ claims are not displaced; and (5) the discretionary function exception does not provide Defendant-Appellee Tennessee Valley Authority with immunity from suit.”

The petition for cert presents questions of standing, whether there is an implied common law cause of action to seek carbon dioxide emissions caps, and whether plaintiffs’ claims raise non-justiciable political questions.

The United States has weighed in in favor of certiorari. The Solicitor General’s filing on behalf  of Respondent Tennessee Valley Authority, raises the additional wrinkle of whether, assuming a federal common law claim is cognizable, “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 Solicitor argues that the Second Circuit based its ruling, in part, on the conclusion that federal common law nuisance actions were not displaced by the Clean Air Act because, at the time, EPA did not regulate carbon dioxide under the Act. The Solicitor noted that, as a result of regulations promulgated since the Second Circuit’s decision, carbon dioxide emissions would be regulated under the Clean Air Act. 

Fourteen amicus briefs were also filed in support of the petition. According to the Supreme Court’s docket, respondents have until November 3, 2010, to file their response to the petition.

Given her participation in the Connecticut v. Am. Elec. Power, we anticipate that Justice Sotomayor would recuse herself. It is unclear whether Justice Kagan worked on AEP while she was Solicitor – but she may recuse herself as well.