The landmark case American Electric Power Co., Inc. v. Connecticut is unique in environmental litigation in that the primary plaintiffs are not environmental groups, or individuals, but government entities. Connecticut, New York, California, Iowa, New Jersey, Rhode Island, Vermont, and Wisconsin—along with the city of New York and three land trusts—filed suit in 2004 against the country’s five largest electric power-generating corporations and one electricity service provider. The plaintiffs sought declaratory and injunctive relief, requiring each defendant corporation to cap, then incrementally reduce, the amount of green house gases (GHG) emitted during power generation. The power companies collectively owned and operated power plants, fueled by coal, natural gas, or other fossil fuels, in twenty states. The complaint alleged that the GHGs emitted from these plants contributes to the public nuisance of climate change. Thus, the complaint alleged a tort violation under federal law, or in the alternative, under state law.

District Court Relies on the Political Question Doctrine (406 F.Supp.2d 265 (2005)).

The plaintiffs filed the suit in the Southern District of New York. Judge Loretta Preska heard the case and, applying the criteria set forth in Baker v. Carr, 369 U.S. 186 (1962), dismissed the case under the political question doctrine. Judge Preska concluded the case was not justiciable because a decision on the merits would require the court to identify and balance economic, environmental, foreign policy, and national security interests. The issues presented policy decisions to be decided by the legislative or executive branch before the court could exercise Article III jurisdiction over such a dispute.

The plaintiffs subsequently appealed. The Second Circuit heard the case in June 2006, and issued its opinion three years later on September 21, 2009. In a departure from the federal judiciary’s typical response to climate change nuisance claims, a two-justice panel vacated the District Court’s decision and found that their claims properly fell under the federal common law of nuisance. Both the delay in the ruling and the small size of the panel are attributable to Justice Sonia Sotomayar’s elevation to the Supreme Court.

Second Circuit Overturns (582 F.3d 309 (2009)).

The Second Circuit’s opinion touched on several issues of law. First, the Court held that the political question doctrine did not bar the claim. Stating that it is error to equate a political question with a political case, the Court found that it cannot decline to decide matters within its jurisdiction simply because such matters may have political ramifications. Further, the Court stressed that the legislative and executive branches possess the authority to displace federal common law by statutory or regulatory standards; if the other branches are dissatisfied with the courts decision, they are free to exercise law or rulemaking authority to override any decision made by the District Court.

Next, the Court held that each plaintiff had standing. The court found the States to have parens patriae and Article III standing by virtue of their quasi-sovereign and propriety capacities under Snapp v. Puerto Rico ex rel. Barez, 458 U.S. 592 (1982). Additionally, the Court relied heavily on the seminal case of Missouri v. Illinois, 180 U.S. 208 (1901), which articulated State standing in common law nuisance cases when it allowed Missouri to sue Illinois to enjoin its dumping of pollutants into the Mississippi River. Relying on further case law, the Court held that the State interest as a quasi-sovereign entity provided the plaintiffs with an interest apart from individuals in a private citizen suit.

Beyond determining the plaintiffs’ parens patriae standing, the Court concluded that the plaintiffs met the requirements for Article III standing articulated in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). First, citing the reduction of snowpack in California as but one example of the impacts of anthropogenic climate change, the Court found that global warming was the cause of both current and future injury to the States. Second, addressing injury-in-fact, the Court found it sufficient for the plaintiffs to show the defendants’ emissions contribute to their injuries. Finally, underscoring the Supreme Court’s reasoning in Massachusetts v. EPA, 549 U.S. 497 (2007), where it held that the remedy would “slow the pace of global emissions increases, no matter what happens elsewhere,” the Court found that the final prong of redressability was met.

After finding that the plaintiffs had standing, the Court determined that the claim was correctly brought under claim of federal common law nuisance. The Court grounded its reasoning in the definition of “public nuisance” found in the Restatement (Second) of Torts, and described communal law public nuisance as “harm that is widespread, unreasonably interfering with a right common to the general public.” Assessing the claim at hand, the panel was convinced of the serious magnitude of the nuisance caused by climate change, and thus found that the States had properly pleaded a case. Moreover, the Court rejected the defendants’ arguments that New York City and the Trusts were not entitled to bring an action under interstate nuisance. Again turning to the Restatement, along with federal case law including National Sea Clammers Ass’n v. City of New York, 516 F.2d 1222 (3d Cir. 1980), the Court declared that New York City and the Trusts were likewise entitled to assert a claim under federal common law nuisance.

Finally, the Court held that no federal legislation has preempted the Plaintiff’s common law claim. In order to hear a claim on common law grounds, a court must determine that federal legislation has not been established that “speaks directly to the issue.” In this instance, the Court rejected the defendant’s assertion that the Clean Air Act or any other federal statute or regulation governs GHG emissions. While the Clean Air Act does broadly incorporate GHGs into its statutory framework, it provides the EPA with discretion as to whether or not to regulate GHGs. As the EPA has not yet done so, a common nuisance claim has not been displaced. However, the Court was careful to stress that if the EPA does create GHG regulations in the future, the new federal regulations would likely preempt federal common law nuisance claims.

– By Sean Waite