The recent economic meltdown may have given some businesses and governments pause in their efforts to reduce their carbon footprints. Recent incidents involving prominent proponents of the global warming movement may have given analysts and skeptics cause to re-examine the data supporting the theory that human activities have become a major cause of global warming. But none of this has stopped plaintiffs from suing businesses for damages which they claim they have suffered due to man-made global warming and its consequences, or for injunctive relief, or both. Now, one of three federal cases that have considered such claims, with varying results, will be considered by the United States Supreme Court.
On December 6, the Supreme Court agreed to decide whether eight states, New York City, and three private land trusts can sue six major electric companies for creating a public nuisance by emitting carbon dioxide – even if the companies have been operating in accordance with current federal environmental statutes and regulations. In Connecticut v. American Electric Power Co., Inc., 406 F.Supp.2d 265 (S.D.N.Y 2005), the plaintiffs claimed that, by emitting large quantities of carbon dioxide into the atmosphere, the electric companies had contributed to global warming, and so were guilty of creating a public nuisance prohibited by federal and state common law. In bringing their action, the plaintiffs claimed to represent the interests of more than 77 million people and sought, on their behalf, relief for any current and future damages due to the electric companies’ “unreasonable interference with a right common to the general public.” More specifically, the plaintiffs sought to hold the electrical companies jointly and severally liable for damages in an unspecified amount, and also to obtain a court order that would require the electric companies to reduce their carbon dioxide emissions by some unspecified percentage each year for at least the next ten years.
The defendants moved to dismiss these sweeping claims arguing, among other things, that the questions of whether and in what amount businesses should be required to reduce greenhouse gases, and how the burden of greenhouse gas reduction should be allocated among participants in the economy, were inherently political questions. Such questions, they argued, were committed to the legislative and executive branches of government, and were not within the jurisdiction of the courts. The district court, in a nineteen-page opinion, agreed with this argument and dismissed the case.
The plaintiffs appealed, however, and the United States Court of Appeals for the Second Circuit, in a 139-page opinion, reversed the district court’s decision, allowing the plaintiffs to proceed with their claim. See Connecticut v. American Electric Power Co., Inc., 582 F.3d 309 (2d Cir. 2009). In doing so, the appeals court expressly rejected the lower court’s argument that the plaintiffs were seeking wide-ranging relief that should be afforded only after economic and political policy decisions had been made by the legislature and the executive. (The court also went out of its way to address, and reject, other arguments the defendants had raised, even though the district court had not rendered a decision on those issues). The Second Circuit decision disagreed not only with the New York district court, but also with (1) similar reasoning that two other district courts in other circuits had used in dismissing similar global warming nuisance claims, and (2) the ultimate result in a Fifth Circuit decision. See Comer v. Murphy Oil USA, 2007 WL 6942285 (S.D. Miss. Aug. 30, 2007); rev’d and remanded, 585 F.3d 855 (5th Cir. 2010), appeal dismissed after failure to achieve quorum for en banc rehearing, 607 F.3d 1049 (5th. Cir. 2010) and Native Village of Kivalina v. ExxonMobil Corp., 663 F.Supp.2d 863 (N.D. Cal. 2009).
The Obama Administration, in an amicus brief urging the Supreme Court to grant certioriari, stated that carbon dioxide emissions control should be handled by the executive and legislative branches, and not through litigation in the courts. The Administration also urged the Supreme Court to remand the case to the court of appeals for reconsideration, in light of EPA regulations addressing carbon emissions that had been issued since the appeals court’s decision.
Adding to the tension surrounding this high-profile case is the fact that Justice Sotomayor, while still an appeals court judge, sat on the panel that heard argument on the matter in the Second Circuit. As a result, she recused herself from deciding the petition for certiorari, and is expected to recuse herself from participating in the Supreme Court’s consideration of the case, leaving eight justices to render the decision.