Court of Appeals rules that private 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
Status: Petitions for rehearing pending in the Second Circuit (No. 05-5104)
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, have 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: First, the court resolved the political question 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 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 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: Next the court analyzed whether the plaintiffs had constitutional standing to bring their claims. 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 court 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 climate impacts are certain to occur.
Regarding the causation requirement, the 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 v. EPA, no requirement that a court remedy completely halt the injury caused by a nuisance, only that the remedy contributes to solution of the nuisance. 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.)
The Public Nuisance Claim: Finally, the court held that all plaintiffs successfully alleged a public nuisance claim under federal common law. This analysis touches on several important questions of federalism: for example, the utilities argued that states should only be able to bring nuisance suits against out-of-state polluters in situations that would have “justified war at the time of the founding.” But the court found that sovereignty concerns actually weighed in favor of the states here, who were not suing other states but private entities, and that there is no “constitutional necessity” limitation on federal nuisance actions.
The court also rejected the argument that federal nuisance actions can only be brought by states rather than municipalities or private entities. The question of when such suits may be brought, the court held, turns on the nature of the nuisance (e.g., whether it is interstate or implicates questions of federalism), not the identity of the party bringing the claim. Finally, the court rejected the argument that federal statutes such as the Clean Air Act had “displaced” the federal common-law tort claim for climate change nuisance—though this analysis could change if the Obama Administration’s EPA were to regulate GHGs under the Clean Air Act, or if Congress passed a new climate law.
This decision does not yet mean that plaintiffs have won their case. Rather, it overturns the lower court’s order to dismiss the case, reinstating it and allowing plaintiffs to pursue their claims. Further, this opinion remains subject to review either by an “en banc” panel of all the judges on the Second Circuit or by the Supreme Court. The high court may be particularly interested in clarifying its holding on standing in Massachusetts v. EPA, given the split in interpretation that has emerged between the Second Circuit and the D.C. Circuit. So far, however, the two courts of appeals to have squarely considered the standing and political question issues in a climate tort context (the Second Circuit here and the Fifth Circuit in Comer v. Murphy Oil USA), have resolved them in favor of the plaintiffs. The Ninth Circuit will face the same issues in an appeal from a district court ruling in Kivalina v. ExxonMobil. Interestingly, all four district courts confronted with climate tort claims have thrown them out on political question grounds, but now two courts of appeals have reached opposite conclusions—perhaps highlighting that the legal theory of these cases may be sound, but the judges who actually have to try them may be concerned about managing such complex issues.
This case is also significant because it thrusts the judicial branch into the climate-change arena by using age-old common law rules that do not require action by Congress or the President. The decision places immediate pressure on large GHG emitters to begin reducing their emissions by signaling that they are increasingly exposed to potential tort liability for climate change impacts. And the decision places additional pressure on 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 that centuries-old legal doctrines are capable of being adapted to confront the complex environmental challenges of the twenty-first century.
Key Opinion:Connecticut v. American Electric Power Company, 582 F.3d 309 (2d Cir. 2009), reversing 406 F.Supp.2d 265 (S.D.N.Y. 2005), petition for rehearing en banc filed, No. 05-5104 (2d Cir. Nov. 17, 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), petition for rehearing en banc filed, No. 07-60756 (5th Cir. Nov. 27, 2009).
But See:Kivalina v. ExxonMobil Corp., __ F. Supp. 2d __, 2009 WL 3326113 (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).
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