Court Greenlights GHG Nuisance Claims Against Power Companies

The U.S. Second Circuit Court of Appeals handed down a ruling on Monday in Connecticut v. American Electric Power Co. resurrecting lawsuits brought by eight states, New York City and three land trusts against several power companies over carbon dioxide emissions. In doing so, the court took a big step towards opening the courthouse doors to lawsuits over climate change.

The district court originally had dismissed the cases on the grounds that there was no recognized federal common law basis for abating greenhouse gas (GHG) emissions that allegedly contribute to global warming, separation of powers precluded the court from adjudicating the issues, and Congress had displaced any federal common law to address global warming issues. According to the district court, the elected branches of government must make an initial policy determine regarding global warming before the courts could adjudicate a nuisance claim over global warming. In addition, the district court had ruled that the plaintiff states, city and trusts did not have standing to sue on account of global warming and the absence of a justiciable claim deprived the court of jurisdiction.

The Second Circuit's 139-page decision overruled the district court on each of these grounds, but the significant portion concerns the "political question" basis for the dismissal. The political question doctrine has been used by other district courts to dismiss climate change litigation in Comer v. Murphy Oil Co. and California v. General Motors.

Under long-standing Supreme Court case law, separation of powers is intended to restrain the judiciary from inappropriate inteference in the business of the other branches of government. Thus, in the words of Chief Justice John Marshall in the 1803 Marbury v. Madison case: "Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court." The Supreme Court in other cases has outlined a number of attributes of a "political question," but three are primary: (1) whether there is a textually demonstrable Constitutional committment of the issue to a coordinate political department; (2) whether there is a lack of judicially-discoverable and manageable standards for resolving the case; and (3) whether it is impossible to decide the case without an initial policy determination of a kind clearly for nonjudicial discretion.

The court in Connecticut v. AEP said that there was no provision in the Constitution that granted the legislative or executive branches responsibility for resolving issues concerning carbon dioxide emissions or other forms of alleged nuisance. Indeed, the court said if any branch had been conferred with the responsibility it is the judiciary. Furthermore, the court said that federal courts have successfully adjudicated complex common law public nuisance claims for more than a century, including cases involving air pollution.

Finally, the court that the absence of legislative or executive action on global warming, if anything, highlighted the need for the courts to act. For example, if existing statutes governing water pollution do not cover a plaintiff's claims and provide a remedy, a plaintiff still is free to bring a claim under the federal common law of nuisance and is not required to await a comprehensive legislative approach to domestic water pollution.

The decision covers several other issues, but the political question portion of the decision may have the widest repercussions. The two other lawsuits also dismissed on political question grounds are on appeal as well -- Comer v. Murphy Oil Co., in the 5th Circuit, is a class action alleging that various oil, chemical and power companies' GHG emissions contributed to climate change and worsened the effects of severe storms, such as Hurricaine Katrina; and California v. General Motors, in the 9th Circuit where the automakers are being sued for creating and contributing to a public nuisance, i.e. climate change. No doubt both courts will look at the Connecticut decision very carefully and weigh its rationale in their own cases.

Another significant aspect of this decision is the fact that the court took the political question issue head on. The court in the Connecticut case could have easily affirmed the dismissal on the political question basis in recognition of the EPA's much-anticipated endangerment finding and Congress' on-going efforts to craft climate change legislation. When a court as influential as the Second Circuit takes on an issue such as this, it sends a very strong signal that the judiciary will play a significant role in the climate change debate in the months to come.