American Electric Power Co. v. Connecticut
An equally divided Supreme Court affirmed that some parties have standing to bring “public nuisance” lawsuit against power companies for injuries caused by climate change, and that the case does not present a “political question” unsuitable for resolution by the federal judiciary; but a majority held that ongoing EPA action to regulate greenhouse gases under the Clean Air Act displaces any federal common-law claim
Status: Remanded for further proceedings.
Discussion & Analysis: In 2004, a coalition of states, private land trusts, and New York City sued a group of major electric utilities for their contributions to climate change. They alleged that the utilities are the largest emitters of greenhouse gases (GHG) in the United States, collectively emitting 650 million tons of carbon dioxide each year; that carbon dioxide is the primary GHG; and that GHGs trap atmospheric heat and cause global climate change, which is an ongoing public nuisance that must be abated under federal or state common law. Plaintiffs sought a court order requiring defendants to cap and reduce their GHG emissions; they did not ask for money damages. The district court dismissed plaintiffs’ claims, ruling that the case raises a “political question” that can only be addressed by the legislative or executive branches, leaving the court without jurisdiction.
In September 2009, in a remarkable 139-page unanimous opinion authored and co-signed by two Republican-appointed judges (the third judge hearing the case had been Sonia Sotomayor, who did not participate in the final decision), the Second Circuit Court of Appeals reversed the district court and reinstated the case. It held that the political question doctrine does not bar the suit; that all plaintiffs, both state and non-state, had constitutional standing to bring the case; and that plaintiffs had made out a successful claim under the federal common-law doctrine of nuisance.
The Political Question Doctrine: The Second Circuit had resolved this issue using the six-factor analysis set out in the Supreme Court’s decision in Baker v. Carr (1962). The first factor is whether there is a “textually demonstrable constitutional commitment of the issue to a coordinate political department.” Despite the complex scientific and economic issues posed by climate change, the lower court concluded that even difficult and far-reaching nuisance suits are the domain of the judiciary, not Congress or the President. The second factor is whether there is a “lack of judicially-discoverable and manageable standards for resolving the case.” The court determined that there were, citing numerous cases in which the federal judiciary has handled complex interstate pollution cases following “well-settled tort rules.” The third factor is whether it is “impossible to decide the case without an initial policy determination of a kind clearly for nonjudicial discretion.” The court determined that it need not wait for other branches of government to act before adjudicating “an ordinary tort suit,” and also cited an existing federal law making it the policy of the United States to seek reductions in GHG emissions.
The fourth through sixth Baker factors ask whether judicial resolution of a case will show disrespect for, contravene, or “embarrass” the other branches of government. The Second Circuit court could find no evidence that adjudication of the case would undermine federal policy, and noted, “It is error to equate a political question with a political case.” Thus the court concluded that the political question doctrine did not currently bar the lawsuit.
Constitutional Standing: The doctrine of standing requires a showing that the plaintiffs have been or will be injured, that the injury is caused by the defendants, and that injury can be redressed by a court decision. The Second Circuit court had found that the states, the city, and the land trusts had standing as property owners whose lands were being damaged by climate change. The court cited Massachusetts v. EPA ’s analysis of standing in a climate context, concluding that the alleged “injury” for standing purposes need not be already occurring so long as it is “imminent,” i.e., relatively certain to occur—and that climate impacts are certain to occur.
Regarding the causation requirement, the Second Circuit court held that climate change, and injuries caused by it, are “fairly traceable” to the power companies’ emissions of GHGs. It further noted that the fact that many other emitters also are contributing to climate change does not affect the causation analysis in this case. Finally, regarding its ability to redress the injury, the court found, again consistent with Massachusetts, that a court order to reduce emissions would likely provide some abatement of climate change and this is sufficient for purposes of standing. (This opinion’s standing analysis, including its interpretation of Massachusetts, is in conflict with the D.C. Circuit’s more limited recent ruling in Center for Biological Diversity v. U.S. Department of Interior .)
Supreme Court Review: On appeal, the Supreme Court affirmed the Second Circuit’s exercise of jurisdiction with an equally divided vote of four to four, as Justice Sotomayor again did not participate. Four justices agreed that at least some plaintiffs had standing under Massachusetts v. EPA and were not barred by the political question doctrine; and four either found Massachusetts distinguishable or adhered to a dissenting opinion in the case. In contrast to the Second Circuit’s robust opinion on the constitutional issues, the Supreme Court’s one-paragraph discussion is remarkable for its brevity.
The Court then held that the Clean Air Act and related EPA actions to regulate greenhouse gases displace plaintiffs’ public nuisance claim under federal common law. The Court specifically noted that Massachusetts v. EPA clarified that greenhouse gas emissions constitute a “pollutant” subject to regulation under the Clean Air Act. Plaintiffs argued, per the Second Circuit’s holding, that their public nuisance claim is not displaced until EPA’s greenhouse gas regulations are in effect. The Supreme Court squarely rejected this argument, expressing concern that individual federal judges otherwise would be in the position of evaluating highly technical, scientific data, and could issue injunctions against thousands of defendants on a case-by-case basis. In reaching its holding, the Court sidestepped the question of whether plaintiffs’ public nuisance claim would be successful in the absence of greenhouse gas regulation under the Clean Air Act.
In addition to federal common law, plaintiffs sought relief under the nuisance law of each state where the defendants operate power plants. The Second Circuit did not need to reach plaintiffs’ state-law claims because it ruled for plaintiffs under federal law. The Supreme Court decision remanded the state-law claims for further proceedings in the lower courts.
Prior to the Supreme Court’s decision, two courts of appeals had squarely analyzed the standing and political question issues in a climate nuisance context (the Second Circuit here and the Fifth Circuit in Comer v. Murphy Oil USA), and both resolved them in favor of the plaintiffs. The Ninth Circuit is facing the same issues in an appeal from a district court ruling in Kivalina v. ExxonMobil. Although the Court’s four-justice vote to grant jurisdiction in this case offers little future direction to federal courts analyzing similar jurisdictional questions, the Court’s federal common-law holding effectively disposes of the threshold issues along with the substantive claim—at least as long as greenhouse gases remain subject to regulation under the Clean Air Act.
Notably, the Court left open some possibility of relief for climate change impacts under state nuisance law, suggesting that centuries-old legal doctrines might still be adapted to confront the complex environmental challenges of the twenty-first century. A state-law decision for plaintiffs would arguably place pressure on large greenhouse gas emitters to begin reducing their emissions by signaling that they are increasingly exposed to potential liability for climate change impacts. And such a decision could yet prod Congress to pass comprehensive climate legislation, if for no other reason than to articulate its own standards for industry responsibility for climate change. While these issues are by no means settled, this decision powerfully demonstrates the reluctance of the federal judiciary to assume a role as a primary regulator of climate change.
Key Opinion: American Electric Power Co. v. Connecticut , 131 S. Ct. 2527 (2011), reversing 582 F.3d 309 (2d Cir. 2009).
See Also: Comer v. Murphy Oil USA, 585 F.3d 855 (5th Cir. 2009) (reinstating nuisance, trespass, and negligence claims against greenhouse gas emitters for damages caused by Hurricane Katrina but denying standing to bring unjust enrichment, fraudulent misrepresentation and civil conspiracy claims), panel decision vacated and rehearing en banc granted, No. 07-60756, 2010 WL 685796 (5th Cir. Feb. 26, 2010), order directing clerk to dismiss appeal (May 28, 2010).
But See: Kivalina v. ExxonMobil Corp ., 663 F. Supp. 2d 863 (N.D. Cal. Sept. 30, 2009) (dismissing nuisance claims brought by Native Alaskan village on political question grounds and for lack of standing), appeal filed, No. 09-17490 (9th Cir. Nov. 5, 2009); California v. General Motors Corp., 2007 WL 2726871 (N.D. Cal. 2007) (not reported) (dismissing nuisance action by state against automakers for climate change on political question grounds), appeal voluntarily dismissed, No. 07-16908 (9th Cir. Jun. 19, 2009).