The Solicitor General of the United States Neal Kumar Katyal has requested that the U.S. Supreme Court grant certiorari review the Second Circuit Court of Appeals September 21, 2009 decision in Connecticut v. American Electric Power, which cleared the way for the courtroom to be the new climate change battleground. 582 F.3d 309 (2d Cir. 2009).
By way of background, the Plaintiffs, who include eight states, New York City, and three land trust groups, sued the Defendants, who include six major electric utilities (American Electric Power Company Inc., American Electric Power Service Corporation, Southern Company, Tennessee Valley Authority, Xcel Energy, Inc., and Cinergy Corporation) under a nuisance claim for the alleged environmental harm and contribution to global warming resulting from their respective greenhouse gas (GHG or GHGs) emissions. Plaintiffs sought damages to include a cap on Defendants’ carbon dioxide emissions and a 3% annual reduction in carbon dioxide emissions for the next ten years.
The Second Circuit reversed the district court’s decision that Plaintiffs’ claims constituted a political question and is therefore barred, and remanded the case back to the district court. The Second Circuit held, “[f]ederal statutes have not displaced Plaintiffs’ federal common law of nuisance claim. The complaints against Defendant-Appellant TVA may not be dismissed on the grounds of the political question doctrine or the discretionary function exception.” Id. at 392.
This decision, if allowed to stand, would provide plaintiffs with standing to sue under nuisance claims for alleged damages to the environment from GHG emissions. The Solicitor General of the United States argues that U.S. Supreme Court review is necessary, because the United States Environmental Protection Agency’s (EPA) new greenhouse regulations under the Clean Air Act have eliminated the need for common-law nuisance claims.
These new GHG regulations were precipitated by the April 2, 2007, U.S. Supreme Court decision, where the Supreme Court held in Massachusetts v. EPA, 549 U.S. 497 (2007), that GHGs are air pollutants covered by the CAA. The Supreme Court also held GHG emissions are subject to CAA section 202(a) under which the EPA Administrator must determine whether or not emissions of GHGs from new motor vehicles or motor vehicle engines cause or contribute to air pollution, which may reasonably be anticipated to endanger public health or welfare, or whether the science it too uncertain to make a reasoned decision. This decision was precipitated by a petition for rulemaking filed by environmental, renewable energy, and other advocacy organizations.
This article was authored by Laura G. Swingle, Jackson Kelly PLLC. For more information on the author see here.
