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.”
The appeal was argued on June 7, 2006 before a three-judge panel that included then-Second Circuit Judge Sonia Sotomayor. The long delay in ruling emerged as a potential issue during Judge Sotomayor’s confirmation process. The decision notes that “[t]he Honorable Sonia Sotomayor, originally a member of the panel, was elevated to the Supreme Court on August 8, 2009. The two remaining members of the panel [Judges McLaughlin and Hall], who are in agreement, have determined the matter.”
In reversing the district court decision, the Second Circuit stated:
“Nowhere in their complaints do plaintiffs ask the court to fashion a comprehensive and far-reaching solution to global climate change, a task that arguably falls within the purview of the political branches. Instead, they seek to limit emissions from six domestic coal-fired electricity plants on the ground that such emissions constitute a public nuisance that they allege has caused, is causing and will continue to cause them injury.”
Plaintiffs complaint seeks abatement of defendant’s carbon dioxide emissions on the grounds that those emissions contribute to global warming, which, plaintiffs allege, constitutes a “public nuisance.” Further analysis of this significant ruling will be posted on the Global Climate Law Blog later today. Prior posts pertaining to this case can be accessed here.
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.
