District court throws out global warming lawsuit brought against power companies under a public nuisance theory, ruling that the case presents a “political question” unsuitable for resolution by the judiciary.
Status: Appeal pending before Second Circuit (No. 05-5104)
Discussion & Analysis: A coalition of states, private land trusts, and the City of New York sued a group of major electric utilities for their contributions to global warming. Plaintiffs alleged that the defendants are the largest emitters of carbon dioxide in the United States, collectively emitting 650 million tons of CO2 each year; that CO2 is the primary greenhouse gas; and that greenhouse gases trap atmospheric heat and cause global warming, which is an ongoing public nuisance that must be abated under federal common law or state law. As result, plaintiffs sought a court order requiring defendants to cap and reduce their CO2 emissions. Defendants asked the district court to dismiss plaintiffs’ claims under several constitutional theories, among them that the case presents a non-justiciable “political question;” that plaintiffs’ claims are displaced or preempted by federal law; and that plaintiffs lack legal standing to be heard. The district court agreed to dismiss, ruling that the case raises a political question that can only be addressed by the legislative or executive branches, leaving the court without jurisdiction.
The court framed its written opinion in terms of separation of powers, deciding that the “scope and the magnitude” of the relief sought by the plaintiffs revealed “the transcendentally legislative nature of this litigation.” The court was particularly concerned with the variety of “initial policy determinations” that it would have to make in hearing the case: for example, given the numerous contributors of greenhouse gases, should only a segment of the electric power industry be made to bear the societal costs? The court further noted that climate change raises foreign policy issues, which are the prerogative of the president. Simply put, this court perceived the dilemma of global warming, and how best to tackle it, as a problem to be addressed solely by government.
Plaintiffs appealed the lower court’s ruling to the Second Circuit in 2005, and a panel of that court heard argument on the case in June 2006. Then, in June 2007, following the Supreme Court’s decision in Massachusetts v. EPA, the Second Circuit requested supplemental briefing from the parties on the implications of Massachusetts for the present case, and expressed particular interest in whether plaintiffs’ claims had been displaced or preempted by federal legislation Although the district court based its ruling solely on the political question doctrine, the Second Circuit is likely to address not only that issue, but also the critical questions of standing and preemption, making the Court’s much-anticipated decision the most important climate change case to be decided since Massachusetts.
The district court’s political question analysis in this case has been adopted by another federal court in its dismissal of California’s public nuisance lawsuit against the automotive industry (California v. General Motors Corp.).
Key Opinion: Connecticut v. American Electric Power Company, 406 F.Supp.2d 265 (S.D.N.Y. 2005).
See Also: Comer v. Murphy Oil, USA, Inc., No. 1:05-cv-436, (S.D. Miss. Aug. 30, 2007), appeal docketed, No. 07-60756 (5th Cir. 2007) (dismissing nuisance lawsuit on political question grounds and for lack of standing; case alleged oil and coal company defendants’ greenhouse gas emissions contributed to damage resulting from Hurricane Katrina).
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