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September 23, 2009 |
Greenhouse Gas Emissions a Nuisance? Second Circuit Rules Utilities Subject to Carbon Emissions Suit The Second Circuit Court of Appeals has revived a public nuisance lawsuit filed by a coalition of states and environmental groups against five power companies alleging the companies contributed to global warming through their emissions of carbon dioxide (CO2). State of Connecticut v. American Electric Power Co Inc., 05-5104-cv. This appellate decision reinvigorates claims against fossil-fuel burning entities that are looking for protection from lawsuits for climate change-related torts. Following upon the United States Environmental Protection Agency's (EPA) Proposed Endangerment Finding, 74 Fed Reg 18886 (April 24, 2009), the decision finds that states, cities and certain public interest groups have standing to go forward with claims against individual entities for "causing" climate change. However, as even the Second Circuit notes, such lawsuits may have a short life if Congress or EPA specifically regulates emissions of CO2. The suit was filed in 2004 by the states of California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont and Wisconsin, and New York City. Three land trusts — Open Space Institute Inc., Open Space Conservancy Inc. and the Audubon Society of New Hampshire — filed a similar suit, and the two were consolidated. The U.S. District Court for the Southern District of New York dismissed the suit on the grounds that it presented a nonjusticiable political question: whether greenhouse gas emissions should be limited in the interest of curbing global warming. The district court decided this question was properly reserved for the legislative branch. The plaintiffs appealed. The Second Circuit first found that the district court had erred in finding that the public nuisance case presented a political question, finding that the district court had read the plaintiffs' claims too broadly as a call for a change in national policy rather than as an order protecting them from immediate harm. The court held there was no need to defer to the political branches and refrain from hearing the suit until there is a definitive policy statement on global warming from Congress and the president. The Second Circuit reasoned that the Supreme Court has defined political questions very narrowly as those involving the Constitution or value determinations. The court further reasoned that because there is no unified policy on the issue, adjudication certainly would not contravene any policy decision already made. The Second Circuit next turned to whether the plaintiffs had standing, that is, whether they had alleged an injury caused by the defendants which the court could remedy. The Second Circuit stated that those with standing to address harm from CO2 emissions must have particular harms and then determined that the states had standing to sue under the doctrine of parens patriae because "[t]heir interest in safeguarding the public health and their resources is an interest apart from any interest held by individual private entities." The court further determined that the states, New York City and the land trusts had "proprietary" standing as property owners. The Second Circuit found that the plaintiffs had satisfied the causation requirement by alleging facts showing the injuries were "fairly traceable" to the defendants' emissions, which account for a significant percentage of the United States' CO2 emissions. The court discussed at length the law of public nuisance, finding that under numerous analytic frameworks, the plaintiffs each alleged specific harms that sufficiently plead a federal common law claim of public nuisance. Because no federal law, such as the Clean Air Act, currently "occupies" the regulatory arena of controlling carbon dioxide emissions, public nuisance law is not displaced by federal law. The court reviewed the various federal acts and laws relating to climate change, finding that none of them addressed the remedy requested by the plaintiffs, that is, requiring that the emissions from the power plants be reduced. The court then likened this case to early water pollution law, to the time in history when water pollution was well recognized as a harm but federal law did not specifically keep, for example, sewage from the city of Milwaukee from affecting its neighbors to the south, the City of Chicago and the state of Indiana. The Second Circuit concluded that new federal laws and regulations may eventually displace the field of federal common law of nuisance in the climate change arena and preempt state laws on the same topic. Until that time, however, federal courts are empowered to hear suits alleging a public nuisance resulting from carbon dioxide pollution. For more information, please contact us. RECENT ENVIRONMENTAL PUBLICATIONS
"U.S. EPA issues Mandatory Greenhouse Gas Reporting
Final Rule," Environmental Update (September 22, 2009) ABOUT SCHIFF HARDIN LLP Schiff Hardin's diverse environmental practice advises clients engaged in a wide variety of industries and commercial endeavors such as electric generation, natural gas distribution and production, chemical manufacturing, auto and auto parts manufacturing, consumer goods manufacturing, real estate development and investments by financial institutions and equity investors.
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