In a tentative victory in the campaign against global warming, the Second Circuit recently decided in favor of eight states, New York City, and three land trusts, allowing their federal common law public nuisance suit against six electric power companies, for injuries related to global warming, to go forward. In a lengthy (139-page) opinion, the court recognized plaintiffs’ Article III standing, held the suit justiciable and not a political question, and construed the federal common law nuisance action in such a way that may open the judicial door for other advocacy groups to sue other greenhouse gas emitters. It also held that the claims are not displaced by existing legislation.br />br />The plaintiffs in the case alleged that defendants, the five largest emitters of carbon dioxide in the United States, are causing “serious harms affecting human health and natural resources” through global warming.br />br />Below, the claims were dismissed as presenting a non-judiciable political question, particularly given plaintiffs’ requested relief: caps and reductions on defendants’ emissions. Recognizing that both global warming generally and the particular use of caps to regulate greenhouse gas emissions are currently matters of significant political debate, the circuit court nonetheless held that the suit in this case did not present a non-justiciable political question, stating (paraphrasing Baker v. Carr, 369 U.S. 186 (1962)), “It is error to equate a political question with a political case.” The court pointed out that setting allowable emission levels would not dictate either domestic or foreign policy, and that there is no need to protect the power of the political branches of government where Congress (or an agency acting under its authority) is free to override the common law post hoc, and to set national policy, with few restrictions. In addition, the court noted that standards for deciding and providing relief in pollution-related nuisance actions exist and have been applied in similar suits by states against pollution emitters. (The court also rejected special political question and “discretionary function exception” arguments made by defendant Tennessee Valley Authority.)br />br />On the standing question, though the court expressed some confusion as to the impact of Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2000) on the test for state standing resting on quasi-sovereign interests, it nonetheless held that all the parties met the test set forth in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992): injury in fact, causal connection between the injury and the conduct complained of, and likely redress of the injury by favorable decision. The court found that the plaintiffs, pursuant to their proprietary interests as landowners, alleged both current injury (e.g., the melting of the California mountain snowcap) and imminent future injury (e.g. damage caused by rising sea levels and global temperatures), and that the causal connection made between defendants’ emissions and those harms was sufficient for purposes of standing. The court also recognized that limiting those emissions would provide redress for the alleged injury by slowing or abating the impact of global warming, even if such relief would not completely eliminate those harms.br />The court also made significantly broad holdings regarding the scope of federal common law nuisance, rejecting defendants’ arguments that public nuisance actions must be predicated on immediate harm, pollution that can be directly traced to an out-of-state source, and substances that are “poisonous” or “noxious” (which carbon dioxide allegedly is not). In addition, the Second Circuit joined the Seventh in allowing non-state parties to bring public nuisance suits, based on previous federal cases, some of which appeared to limit public nuisance to a state-only option, and the Restatement. With regard to the former, in the court’s opinion, the power companies “confuse[d] the underlying basis for the Supreme Court’s original jurisdiction over actions involving a state as a party with what is necessary to state a federal nuisance claim.”br />br />Finally, the court ruled that plaintiffs’ claims were not displaced by existing legislation. The Clean Air Act, the court held, does not “thoroughly address” greenhouse gas emissions, particularly in light of the fact that the EPA has not made the requisite findings to bring carbon dioxide under the law’s purview; other legislation prescribing research, reports, technology development and monitoring, similarly do not actually regulate greenhouse gas emissions.br />br />Two concluding points of interest: 1) Although originally argued before a three-judge panel in June 2006, this decision was written by only two; the third was then-Judge Sonia Sotomayor, elevated to the Supreme Court on August 8, 2009. 2) Law professors apparently do a better job reading the Federal Rules of Civil Procedure than do practitioners: only the Law Professors’ amicus brief (in support of the defendants) was submitted before the Rule 29(e) deadline, leaving the court to disregard four others filed by various interest groups.

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