Second Circuit reversal in Connecticut v. American Electric Power enables significant climate change litigation to proceed
In a long-awaited decision, the US Court of Appeals for the Second Circuit has reversed the district court's decision in Connecticut v. American Electric Power Co. (“AEP”), a public nuisance lawsuit filed by eight state attorneys general, the City of New York, and three land trusts against six electric power companies based on greenhouse gas emissions. 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.”
The unanimous two-judge ruling (more on that below) vacated and remanded Judge Preska’s ruling, holding – in a hefty 139 pages – 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.”
Continue Reading...Human rights-based climate change litigation - a new tool for environmental advocates?
A January 15 UN report on the relationship between climate change and human rights has concluded that while, in theory, global warming may infringe on certain fundamental human rights, individual human rights-based climate lawsuits are not likely to be successful. Nonetheless, environmental advocates may soon be taking up these issues in the courtroom, in part because litigation can bring mass public awareness to climate change issues. This increased exposure may apply added pressure to shape government policy, but is climate change an issue for courts to address?
Continue Reading...Appeals pending for public nuisance climate change litigation
Appeals are pending in three cases with significant implications for tort-based climate litigation. Connecticut v. American Electric Power Company, Inc.; Comer v. Murphy Oil Co.; and California v. General Motors Corp. – all dismissed in district court on political question grounds – are pending in the Second, Fifth, and Ninth Circuits, respectively. As the legislative and executive branches mobilize to address climate change issues under the Obama administration, activity in the judicial branch may also impact the climate law landscape.
Continue Reading...Civil conspiracy claim targets political question defense in public nuisance climate suit
While three nuisance-based climate lawsuits have been dismissed by federal district courts because, among other reasons, they raised non-justiciable political questions, plaintiffs in the latest public nuisance case believe that the addition of a civil conspiracy claim will overcome the political question defense.
Continue Reading...International climate discussions and the political question defense
The first three major tort-based climate change lawsuits against alleged greenhouse gas emitters were dismissed in part because they raised non-justiciable political questions (all three cases are currently on appeal). For example, the district court in Conn. v. Am. Elec. Power Co., Inc. rejected a 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.”
Recent events offer added support for advocates of the political question defense in climate-based tort litigation:
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