Posted by Jonathan Adler:
*Connecticut v. AEP* -- Missing No Longer:
http://volokh.com/archives/archive_2009_09_20-2009_09_26.shtml#1253581056
Over the summer I [1]pondered the fate of Connecticut v. American
Electric Power, a case argued before the Second Circuit in June 2006.
The case, a suit filed by several states against several utilities
alleging their emissions of carbon dioxide contributed to the "public
nuisance" of global warming, was of particular interest because one of
the judges on the case was then-Circuit Judge Sonia Sotomayor.
Today, some three years and three months later, an [2]opinion has
finally issued, and it's a whopper. The 139-page opinion, in which
Judge Sotomayor did not participate, reverses the district court's
dismissal of the case and allows the states' suit to proceed. The
opinion begins:
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.
I've a few other things to attend to, so a more complete analysis will
have to wait, but here's a quick take. First, the court's failure to
affirm the district court is not too surprising, as the political
quesiton argument was always a bit of a stretch. It's also no surprise
that, post-Massachusetts v. EPA, the court found that the states had
standing. Indeed, the case for parens patriae standing is actually
stronger here than in Massachusetts. What is surprising to me,
however, is the court's decision is that the federal common law claims
are not preempted. Prior to Massachusetts v. EPA this would have been
a reasonable conclusion. After the Supreme Court's conclusion that
greenhouse gases are pollutants under the Clean Air Act -- and are
thus subject to extensive federal regulation -- preemption of the
federal claims would seem to follow under Milwaukee v. Illinois
(though the state common law claims could still proceed). I'll be
curious to see how the court justified this surprising result.
References
1. http://volokh.com/posts/chain_1243570791.shtml
2.
http://www.ca2.uscourts.gov/decisions/isysquery/d61f676c-fe65-4781-9551-c10d17104dba/1/doc/05-5104-cv_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d61f676c-fe65-4781-9551-c10d17104dba/1/hilite/
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