US Court of Appeals for the Second Circuit
September 21, 2009
The 2nd Circuit Court of Appeals overturned a 2005 District Court ruling (406 F. Supp. 2d 265, (S.D.N.Y. 2005)), that had dismissed a case seeking relief from climate-related damages caused by carbon dioxide emissions from five of the largest electricity producers. The suit brought by eight states and New York City (along with three land trusts) sought to use the federal common law of nuisance as grounds for obtaining reductions in carbon dioxide emissions from the utilities named in the suit. The District Court had dismissed the case on the grounds that the claim presented a “political question” that could more appropriately be addressed by another branch of government. The Second Circuit’s decision ruled that the claims do not fall within the political question exclusion and that the plaintiffs had standing to bring the case. The appeals court decision vacated the lower court’s decision and sent the case back to the District Court for further proceedings.
Background
In 2004, eight states (California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont and Wisconsin) and New York City filed a complaint against the five largest emitters of carbon dioxide in the United States (American Electric Power, Southern Company, TVA, Xcel Energy and Cinergy Corp.) in the District Court of New York. Their complaint sought “abatement of the defendants’ ongoing contributions to a public nuisance.” The complaint relied on reports from the Intergovernmental Panel on Climate Change and the U.S. National Academy of Sciences to support the causal link between increased greenhouse gas emissions and global warming. It listed current injuries from climate change, for example, flooding in California from earlier melting of snowpack, and expected future injuries if emissions were not abated. The relief sought by the plaintiffs included requiring the defendants to cap their carbon dioxide emissions and to reduce them over time. A similar complaint was filed by three land trusts (Open Space Institute, Open Space Conservancy, and Audubon Society of New Hampshire).
The District Court dismissed the compliant ruling that the case raised a “non-justiciable political question” – an issue not well suited for the court’s to decide. It ruled that the questions raised in the complaint involved balancing the costs of reducing greenhouse gas emissions, the benefits from such actions, and the foreign policy implications and that balancing such interests required an “initial policy determination” that should first be made by another branch of government (Congress or the Executive Branch) that is better suited to such deliberations.
Second Circuit Court's Decision
On appeal, the 2nd Circuit Court rejected the District Court’s claim that the case presented a political question better addressed by another branch of government. It stated, “Well settled principles of tort and public nuisance law provide appropriate guidance to the district court in assessing plaintiffs’ claims and that the federal courts are competent to deal with these issues.” It goes on to say that simply because a matter has political ramification, this is not a reason by itself for restricting action by the courts. The 2nd Circuit’s decision also looks at whether Congress has already spoken to the issue of limiting global warming and therefore has displaced any common law basis for action. After reviewing existing statutes, including the Clean Air Act (CAA), it concluded that no such displacement has yet occurred. Finally, the Second Circuit Court’s decision goes on to address the issue of standing and determined that the states do have a legitimate interest in protecting their natural resources and the health of their citizens and that the redress sought by the plaintiffs would reduce the harm alleged. The decision concludes by quoting from a water pollution case decided by the Supreme Court (Illinois v. City of Milwaukee, 406 U.S. 91 (1972) and applying it to greenhouse gas emissions: “It may happen that new federal laws and new federal regulations may in time pre-empt the field of federal common law of nuisance. But until that comes to pass, federal courts will be empowered to appraise the equities of the suits alleging creation of a public nuisance by greenhouse gases.” The defendants may appeal the 2nd Circuit’s decision or the case will be returned to the District Court and heard on its merits.
Implications for Climate Change Policies
While most of the attention has been paid to possible Congressional action and EPA regulations, this case opens up yet another potentially critical front for efforts to reduce greenhouse gas emissions. As the Court suggests, either comprehensive legislation by Congress or regulatory actions by EPA could serve to displace these common law of nuisance suits. However in the absence of either, this case (and others likely to follow) offers another path forward, though one that seems particularly problematic, for efforts to reduce greenhouse gas emissions. The potential for additional public nuisance cases serves to further underscore the need for comprehensive action by Congress.