September 22, 2009
Greenhouse Gas Regulation Through The Nuisance Suit
Posted by David Zaring

In what could be a big, big case, the 2d Circuit just permitted a federal common law nuisance suit to go forward against power companies that contribute to greenhouse gas emissions.  As you might imagine, the interplay between this and Massachusetts v. EPA, the Supreme Court's greenhouse gas case, is quite complicated.  UDPATE: Here's Jonathan Adler on the case, treading much of the same ground ... only a day earlier.  But some observations:

  • Standing here would presumably extend to every property owner in the country ... and possibly the world.  Standing isn't supposed to permit generalized grievances to be pursued in court, and so I see that as a problem if Supreme Court review is sought...but many of the plaintiffs here are states, who get that specialized standing as a result of Massachusetts v. EPA (it's a bit more controversial with the trust plaintiffs who, at least in my view, look a like like other private property owners).
  • Is the injury redressable?  The Second Circuit thinks that this argument has been resolved: "Defendants’ assertions echo their arguments for nonjusticiability under the political question doctrine: because global warming is a world-wide problem, federal courts are not the proper venue for this action, nor could the courts redress the injuries about which Plaintiffs complain because global warming will continue despite any reduction in Defendants’ emissions. Massachusetts disposed of this argument. The Court recognized that regulation of motor vehicle emissions would not “by itself reverse global warming,” but that it was sufficient for the redressability inquiry to show that the requested remedy would “slow or reduce it.”
  • The case was argued in 2006.  Sonja Sotomayor presided.  Interesting, no, that somehow a decision wasn't rendered until her confirmation over three years later?  On the other hand, the opinion, which is over 100 pages long, must have taken quite a while to write.
  • 3 GOP appointees on the unanimous panel, in what is undoubtedly some creative litigation spearheaded by environmental activists (viz, the NRDC), though pursued both by them and by states.
  • In theory, people like Richard Epstein should be overjoyed at this use of a common law cause of action to achieve a regulatory end.  Bet he won't be, though.  Which shows that it's a bit silly to argue that regulation is bad, and common law is good (or vice versa) without knowing the ends to which the two governance techniques is being put.

After the jump, the court's quick and dirty summary of the opinion.  I can't imagine the Supreme Court won't be looking at this very closely - the implications are vast.

From the opinion summary:

In 2004, two groups of Plaintiffs, one consisting of eight States and New York City, and the other consisting of three land trusts (collectively “Plaintiffs”), separately sued the same six electric power corporations that own and operate fossil-fuel-fired power plants in twenty states (collectively “Defendants”), seeking abatement of Defendants’ ongoing contributions to the public nuisance of global warming. Plaintiffs claim that global warming, to which Defendants contribute as the “five largest emitters of carbon dioxide in the United States and . . . among the largest in the world,” Connecticut v. Am. Elec. Power Co., 406 F. Supp. 2d 265, 268 (S.D.N.Y. 2005), by emitting 650 million tons per year of carbon dioxide, is causing and will continue to cause serious harms affecting human health and natural resources. They explain that carbon dioxide acts as a greenhouse gas that traps heat in the earth’s atmosphere, and that as a result of this trapped heat, the earth’s temperature has risen over the years and will continue to rise in the future. Pointing to a “clear scientific consensus” that global warming has already begun to alter the natural world, Plaintiffs predict that it “will accelerate over the coming decades unless action is taken to reduce emissions of carbon dioxide.”

Plaintiffs brought these actions under the federal common law of nuisance or, in the alternative, state  nuisance law, to force Defendants to cap and then reduce their carbon dioxide emissions. Defendants moved to dismiss on a number of grounds. The district court held that Plaintiffs’ claims presented a non-justiciable political question and dismissed the complaints. See id.

On appeal, Plaintiffs argue that the political question doctrine does not bar adjudication of their claims; that they have standing to assert their claims; that they have properly stated claims under the federal common law of nuisance; and that their claims are not displaced by federal statutes. Defendants respond that the district court’s judgment should be upheld, either because the complaints present non-justiciable political questions or on a number of alternate grounds: lack of standing; failure to state a claim; and displacement of federal common law. In addition, Defendant Tennessee Valley Authority (“TVA”) asserts that the complaints should be dismissed against it on the basis of the discretionary function exception.

We hold that the district court erred in dismissing the complaints on political question grounds; that all of Plaintiffs have standing; that the federal common law of nuisance governs their claims; that Plaintiffs have stated claims under the federal common law of nuisance; that their claims are not displaced; and that TVA’s alternate grounds for dismissal are without merit.

We therefore vacate the judgment of the district court and remand for further proceedings.

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