The Federal Court of Appeals (2nd Circuit) issued a major decision in the ever growing debate regarding action on climate change. The court is allowing states to proceed with a suit against power companies that calls for a court order to reduce emissions of greenhouse gases which contribute to global warming.
Eight states (California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont and Wisconsin), New York City and three land trust organization had filed a suit alleging major power plants caused a nuisance by emitting greenhouse gases that contribute to climate change. The Appeal Court decision follows a lower court which dismissed the case on an interesting rule of law- the "political question doctrine." In essence the lower court found the nuisance claim to raise a very complicated political question that was best left to the Executive and Legislative branches of government. That questions was the balance between:
1) Reducing greenhouse gases to eliminate or mitigate societal impacts that flow from climate change
2) The negative impact on the economy caused by the regulations and the societal impacts that would result
The Appeals Court ruled that the States did not need to wait for Congress to act by passing legislation. The Court also ruled that EPA’s authority to regulate greenhouse gases under the Clean Air Act does not displace nuisance claims. The Court noted that the mere issuance of a proposed endangerment finding by EPA was not enough to displace judicial relief under federal common law nuisance theories.
Other significant findings in the Appeals Court decision include:
- The Court found the States are experiencing current "injury in fact" due to impacts from climate change, including melting California snow pack and erosion on the Massachusetts shoreline
- Emitters of greenhouse gases face potential nuisance liability by contributing to climate change. The Court rejected the notion there must be a direct causation between the sources of emissions and global warming.
The decision will certainly increase pressure on those who have resisted passage of climate change legislation. Those who stand in the way of legislation must face the prospect of either: a) EPA regulations under the Clean Air Act; or b) Court ordered caps on emissions through multiple nuisance claims. Either result would be far worse that the legislative option. Both would result in even more complex regulatory schemes, less certainty and more regulation of smaller sources.
Perhaps there will be a renewed sense of urgency to pass climate change legislation. American Electric Power, one of the utilities sued, was quoted in the N.Y. Times asserting the need for climate change legislation:
At American Electric Power, Pat D. Hemlepp, a spokesman, said the company’s lawyers had not decided whether to appeal. But he added: “We don’t feel that litigation is a proper avenue to address climate concerns. In our view, it’s a policy issue.”
“Legislation would be the best approach, and that’s happening now,” Mr. Hemlepp said, referring to a bill that has passed the House and that the Senate may take up this year.
UPDATE 9/24/09: Another wrinkle that I did not discuss regarding this decision is that it will open up the floodgates of climate change litgation. As appropriately acknowledged on Stoel Rives LLP Renewable + Law Blog, private parties now have been recognized to have standing to bring federal nuisance claims:
The court recognized that the Supreme Court had never addressed this question, but concluded that private parties should be able to proceed with federal nuisance claims related to climate change when they invoke an overriding federal interest or federalism concerns. By holding that private parties can bring federal nuisance suits and by recognizing that climate change is of overriding federal interest, the court potentially cleared the way for federal lawsuits against all types of companies that emit material levels of greenhouse gases.