Last year, the U.S. Environmental Protection Agency (EPA) began a scientific assessment of these watersheds. Earlier, tribes and conservation groups had urged the EPA to invoke Section 404(c) of the Clean Water Act, which gives the agency authority to restrict or prohibit discharge of dredged or fill material, including mining wastes. To date, the EPA has not decided whether to exercise that authority. However, the EPA looks as if it may take action soon, having recently announced it is seeking experts to peer-review Pebble Mine report.

For forty-five years, the federal and state governments have sought to balance conservation and development in the Kvichak and Nushagak river drainages in southwest Alaska. These drainages are major contributors to the world’s largest commercial salmon fishery in Bristol Bay, offer world-class sport fishing and hunting, and provide important subsistence foods for local residents. Now, the Pebble Limited Partnership seeks to develop one of the world’s largest low-grade copper, gold, and molybdenum deposits located in Southwest Alaska, based on mining claims staked upon state land.

Alaska attorney Geoffrey Y. Parker provides a detailed examination of the history of government conservation and policy of the  Kvichak and Nushagak river drainages of Bristol Bay. The article demonstrates that EPA’s potential use of Section 404(c) is consistent with most of the history of state and federal efforts to balance conservation and development in these drainages, offers a perspective on that history, and concludes that use of Section 404(c) is one of the few opportunities in this history for government to conserve these drainages across property boundaries.

SJEL Editor in Chief, David A. Wilkinson argues that the EPA should initiate the Section 404(c) process to support the protection of the Bristol Bay Region’s unique ecology. Mr. Wilkinson builds upon the arguments that tribes and conservation groups made in their original petition to the EPA, and shows that judicial precedent and past agency actions support the use of the Section 404(c) process.

Visit www.sjel.org to read the articles.

Announced this week, the 2012–2013 Editorial Board features the following Seattle University School of Law students:

• Editor in Chief, Rosemary East
• Managing Editor, Stephanie Chow
• Content Development Editor, Brant Olson
• Business Editor, Christy Bryant
• Marketing and Events Editor, Vanessa Jimenez
• Administrative Editor, Jackson Kern
• Notes and Comments Editors, Jordan Fahle and Kathleen Sirianni
• Research and Technical Editor, Amy Whiting
• Lead Article Editors, Seth Lubin, Archita Taylor, Cynthia Chu and Diego Rondón Ichikawa

The incoming board has already started organizing the application process for next year’s 2L members. The incoming board will also edit and publish the proceedings from the Sustainability and the Law Symposium to be held on April 20, 2012 at Seattle University.

“We’ll be placing the journal in very capable hands in a few months,” said current Editor in Chief David Wilkinson. “In the meantime, we have more content slated for online publication and we plan on closing the academic year with a strong finish.”

SJEL will petition the administration of the Seattle University School of Law for full accreditation at the end of year. Next year’s Editorial Board will focus on maintaining the quality of the journal and boosting the number of published articles on the sjel.org web site. SJEL will also have, for the first time, associate editors: Matt Link, Cameron Pardon, and Joshua Ashby.

“The current board set us up for success with all of the great work they did this year, and we are looking forward to continuing the momentum,” said incoming Editor in Chief Rosemary East.

As part of the symposium, WLS and SJEL are conducting a writing competition in which entries should address one of the three themes of the event:

1. Making Sustainability Legal:  Is the current framework of environmental laws capable of bringing about sustainable outcomes?  If not, what would a sustainable environmental legal regime look like, and how do we get there?
2. Making Sustainability Economically Viable:  How can we align the values of sustainability with economic forces and business imperatives so that providing sustainable goods and services through sustainable means becomes profitable now and financially viable for the long term?
3. Making Sustainability Socially Just:  How can we make sure that all segments of society benefit from adoption of sustainable practices, and that neither the externalities of unsustainable practices nor the costs and dislocations of moving to a more sustainable economy are imposed disproportionately or unfairly on those who can least afford them?

Entries from law students and legal scholars, including law school faculty and members of the bar, are welcome and will be judged in separate categories.

Any student enrolled in an accredited law school in the United States during 2011‐2012 is eligible to submit an entry in the law student category. The winning entries in each category for each of the three themes will be announced at the Symposium. All entries that the judges deem worthy of publication will be published in a special issue of the Seattle Environmental Law Journal dedicated to the proceedings of the Symposium. Entries must be submitted by email to wls.writing.competition@gmail.com by 5:00 p.m. Pacific Daylight Saving Time on March 23, 2012.

Papers must not exceed 5,000 words in length (a maximum of approximately 20 pages), double‐spaced, 12‐point font using Bluebook law review citation format. Each page must have a header including the title of the paper and a page number. For anonymous evaluation of the entries, no information that could identify the author should appear anywhere in the body of the paper, including in the header. Each entry must have a separate cover sheet (not included in the 5,000 word limit) that includes the following contact information: (1) name; (2) address; (3) phone number; (4) email address; (5) law school (for law students and law faculty members); and (6) paper title. Any relevant article or essay may be submitted for the competition, including writing submitted for academic credit. Papers that have been previously published are not eligible for the competition. A paper must be the original work of the individual submitting the entry.

Judging: Papers will be subject to a blind review process; the panel of judges will judge the papers anonymously, without knowledge of the author’s name or law school. Papers will be evaluated by the following criteria: (1) originality and thoughtfulness; (2) writing quality; (3) analysis and legal reasoning; (4) quality and use of research (including interdisciplinary and applied examples); and (5) compliance with the competition rules.

Winning entries will be announced at the Sustainability and the Law Symposium at Seattle University on April 20, 2012.

SJEL Meets with Environmental Policymakers and Professionals from Vietnam

The Seattle Journal of Environmental law hosted members of a U.S. State Department professional exchange program this week, meeting with a delegation of environmental policy makers from Vietnam to discuss the role of environmental law journals, such as the Seattle Journal of Environmental Law, in future environmental regulation and policy. During the Tuesday morning meeting at the Seattle University School of Law, SJEL shared its role as Washington State’s first environmental law journal, and discussed the unique effect that a law journal with a strong online presence has on the academic community and environmental policymaking.

The U.S. Embassy in Vietnam nominated the delegates as upcoming leaders in their field. The exchange program is designed to show the delegates different approaches to researching the development of environmental protection regimes and permitting programs, studying the role of science in environmental policymaking, learning about different approaches to compliance and enforcement, meeting with environmental law stakeholders, and exploring public participation in the dialogue surrounding environmental legal issues. The exchange program, titled “Creating Environmental Laws and Regulations,” was coordinated with help from the World Affairs Council of Seattle.

The visiting leaders included professionals working in Vietnam’s Ministry of Natural Resources and Environment and the Ministry of Public Security. The guests included Dr. Loi Van Dang, Deputy Director of the Department of Pollution Control, Vietnam Environment Administration; Mr. Son Mink Hoang, Deputy Director of the Department of Policy and Legislation, Vietnam Environment Administration; Dr. Dong The Nguyen, Deputy General Director, Vietnam Environment Administration; Dr. Khanh Quoc Nguyen, Director, Center for Environmental Information and Data, Vietnam Environment Administration; Mr. Phuong Nam Nguyen, Director, Vietnam Environment Protection Fund; Mr. Sy Thi Nguyen, Deputy Director, Policy Department Environmental Crime Prevention Unit; and Dr. My Thi Pham, Editor-in-Chief, Natural Resources and Environment Newspaper. 

The Seattle Journal of Environmental Law was represented by its Executive Development Editor, Robert Palmer; the journal’s faculty advisor, Professor Henry McGee; and the Editor-in-Chief, David Wilkinson.

The meeting illuminated the uniqueness of student legal publications. The visiting leaders asked how SJEL began, who supported it, and how it was managed. Concerned and passionate students started the journal, and students work on the journal with the understanding that it is a learning experience—a chance to not only learn more about environmental legal issues, but a chance to join the public dialogue surrounding environmental law.

The meeting served also as a reminder of the variety of approaches to promoting public dialogue on legal approaches to solving environmental problems. For example, Dr. My Thi Pham explained the availability of online public comments for new bills related to environmental law in Vietnam. While the academic journal approach in the United States is arguably less directly responsive to legislation, the meeting highlighted some parallels. Academic journals enable professors, practitioners, and students to respond to changing legal standards, or even to propose new laws.

The meeting offered a valuable chance to learn not only about Vietnam’s approach to involving the public in the environmental law dialogue, but also about the unique roles that student-run publications can play in a local and global dialogue. The variety of approaches to public participation in the development of the law is impressive. But the meeting highlighted that while the nonprofit, nonpartisan, student-run publication model may be traditional in the U.S. legal community, it is by no means universal. Student journals do indeed provide a unique avenue for public participation in the development of our laws.

The magnitude of the case was not lost on the Court or the parties, with even the Acting Solicitor General remarking that AEP was a first case in over two hundred years touching on an issue of such global proportions. But, in the Petitioner’s view, because the entire world is both perpetuates and suffers from climate change, prudential standing was the most appropriate means to dispose of the case.

There is little doubt that case may end in a stalemate between the conservative and liberal blocs of the Court.

The US Supreme Court heard arguments April 19, in AEP v. Connecticut. Five states, the City of New York and two land trusts brought suit against the five largest carbon dioxide-emitting utility companies under a federal nuisance claim. Interestingly, because one of these utility companies is the Tennessee Valley Authority, a quasi-governmental agency, the Department of Justice and Acting Solicitor General Neal Kaytal represented it.

The States claim that the carbon dioxide emitted by large coal-burning utilities, with the defendants owning the largest share of these source, directly cause harm to the States by increasing ocean levels due to the effects of global warming and climate change. This case marked the second climate change case to reach the Supreme Court, and has the potential to both strengthen and erode the gains from the precedent set in Massachusetts v. EPA in 2007.

Leading up to the oral arguments, commentators asked whether Justice Kagan would be able to invoke her inner Justice Stevens and anchor the liberal wing of the bench. While the litigation stated during the Bush Administration, some wondered if the plaintiffs would continue to advance their case given a new administration in the White House.  Left to be seen is whether it will matter that Justice Sotomayer recused herself from the Court due to her involvement in the case at the Second Circuit, setting up the potential for a 4-4 split.

Petitioners Provided Several Avenues for Dismissal

In a rare extended session, attorneys from all three of the parties (the plaintiffs, the corporation defendants and the Solicitor General on behalf of the TVA) focused arguments on whether the Court has jurisdiction over the Plaintiff’s common law claims. Both the private companies and the government argued that the Court lacks jurisdiction on multiple grounds, including prudential standing, political question grounds, displacement, and most importantly, Article III standing. In terms of displacement, both the private companies and the government argued that the EPA’s ongoing efforts to regulate climate change sufficiently bar a common law nuisance claim. The EPA preparing regulations to limit the carbon dioxide emissions of coal-fired power plants, but a final rule may not be promulgated until sometime in May 2012 as required by a court order.

Although the Petitioners sought to dismiss the case on any of these claims, the presentation to the Court focused primarily on the prudential standing, which gives the Court unique authority to dismiss the matter. Peter Keisler, a former Acting Attorney General under President Bush and at one time a nominee for a post on the D.C. Circuit, began his argument by focusing on the complex nature of combating climate change. Early in the argument Chief Justice Roberts questioned Mr. Keisler’s by wondering whether it was prudent to use prudential standing to dismiss the case when it could be dismissed under Article III standing. Mr. Keisler noted that although Massachusetts may provide some authority for this matter, there was nonetheless equally persuasive authority under Steel Co. v. Citizens for Better Environment to dismiss this case first under prudential standing without considering Article III standing.

Standing v. Merit — a Mass. v. EPA Question

As the argument progressed, the discussion turned toward whether the Court should consider the issue of standing, or whether that argument was in fact directed at the merits of the case. In Mr. Keisler’s presentation and General Kaytal’s, Justice Kennedy and Chief Justice Roberts kept coming back to the distinction between standing and displacement. Although the discussion did not seem to resolve itself, it provided some insight into where the votes may lie and where the battle may be for winning-over Justice Kennedy.

As the government gave its presentation, General Kaytal made the remarkable statement that this case was a first in the over two hundred years to deal with an issue of such global proportions. He drew the Court’s attention to the fact that because the entire world is both a source of global warming emissions and a victim all at the same time, prudential standing was the most appropriate means to dispose of the case. Referring back to Justice Kennedy’s concern over the merits of the case, the Chief Justice questioned General Kaytal’s argument that the Court has jurisdiction over the case, but should exercise restraint in considering the merits of the case. By citing an oft-used quote from Chief Justice Marshall that if the Court has jurisdiction it must consider the merits, Chief Justice Roberts signaled the possibility that while the Court may ultimately dismiss the case under the theory of displacement, the Court may consider defining the current standing precedent under Massachusetts. This could leave open the possibility of the Court narrowing its holding in Massachusetts and even barring standing for private citizens to bring suit for all types of climate change cases.

The Limits of the Displacement Test

In discussing the merits of the case, many of the justices attempted to determine the limits of a potential test regarding displacement considering the EPA’s recent actions to regulate climate change. With this background, both of the petitioner parties argued that the political branches were better equipped to address climate change; the courts are not as well equipped to provide relief to the Plaintiffs in this case or to and any future plaintiff in another federal or state case brought under the common law of nuisance. In a moment of levity, Justice Kagan remarked to General Kaytel that the displacement argument sounds more like a political question test with the multiple factors under Baker v. Carr as an appropriate means to dismiss the case. The Solicitor General replied that the government does not care how it wins, but would submit that prudential standing is the most appropriate. The Court dismissing the case under that test makes it less likely the Court would fashion a rule that would exclude certain plaintiffs in the future, or eviscerate the holding in Massachusetts v. EPA.

Respondents Argue the Courts are Equipped for GHG Suits

In response, Barbara Underwood, Solicitor General of the State of New York representing the State Respondents, argued that the case was justiciable and that the judicial branch could in fact develop a mechanism to redress the nuisance claims. In a very heated discussion, both Justice Ginsburg and Justice Kagan pointed out that while nuisance may have been an appropriate claim prior to the enactment of the Clean Air Act or the establishment of the EPA, the law and the agency are in place and the EPA is doing an adequate job exercising its authority under Massachusetts. Thus, it appears that the liberal bloc of the Court may focus on this rationale so as to give cover to the private companies and the government and to allow the EPA to continue to put into place a consistent and reasonable mechanism to regulate climate change.

True to form, Justice Scalia had the entire chamber in stitches with his attempt to set a test for future nuisance claims. In a highly-quotable reference, Justice Scalia made the slippery-slope argument that future plaintiffs seeking restrictions on methane gas may have to sue individuals farmers, or even bring claims “cow by cow,” in order to address greenhouse gas emissions from sources other than large coal plants. Although General Underwood had little to respond to this line of questioning, she did make the case that Article III judges are competent to develop a reasonable and appropriate mechanism to address climate change, and the Second Circuit’s decision would keep courts open to future State plaintiffs to bring cases to protect their lands and their citizens.

The oral arguments featured several persistent themes, and there is little doubt that case may end in a stalemate between the conservative and liberal blocs of the Court. With Justice Sotomayor recused from the case because she sat on the Second Circuit panel, a 4-4 tie is possible and would maintain both the Circuit court’s opinion favorable to the states, and the current precedent under Massachusetts. Ultimately, the Court may dispose of the case under any number of the claims suggested by the Petitioners, with some attempt made to clarify or distinguish the decision from Massachusetts. This possibility that the AEP decision could narrow Massachusetts has the environmental community nervous, especially with the impacts of climate change likely to be felt more heavily in the coming years and decades. The Court’s decision could redirect all future climate change cases, or it could lead to a collective sigh of relief if the Court dismisses the case and keeps Massachusetts intact.

– Marcus Lee

The AEP decision could have major implications for future environmental regulation, with the Court agreeing to address the question of standing, whether the claim presents a non-justiciable political question, and whether the public nuisance claim is displaced by the Clean Air Act, or by pending regulations. A Court favorable to the origional Plaintiffs, now Respondents—a collection of states, a city, and two land trusts—would need to open the door to similar claims in three ways: 1) a relaxed redressability and causation standard applies and is met to give standing; 2) climate change is an issue for which the court has enough guidance to avoid second-guessing the Legislative or Executive branches; and 3) the emission of greenhouse gasses is not displaced by the Clean Air Act, or the EPA’s commitment to regulate greenhouse gases with the Clean Air Act in the coming months.

The case includes several pegs upon which the Court could hang a decision for the Petitioner power companies; each option before for the Court would limit future litigation to different degrees. Finding that the existence of upcoming regulations, by the EPA in this case, sufficiently displaces a common law public nuisance claim would give government agencies a powerful new ability to stifle lawsuits. Dismissing the case based on the standing, the Court would limit the relaxed standing requirement from the only other climate change case, Massachusetts v. EPA, to cases based only on a procedural right specifically afforded by Congress.

A Glimmer of Hope for Environmentalists

In 2009, a district court decision to issue an injunction against the Tennessee Valley Authority regarding emissions from four coal-fired power plants sparked a flurry of hope for environmentalists. An avenue for legal redress of major environmental damage once thought to be wrought with potholes and dead-ends was renewed and paved in gold. North Carolina v. TVA, 593 F.Supp.2d 812 (W.D.N.C 2009). Common law public nuisance was once again a viable pathway for environmental lawyers to seek justice—no longer would the political question doctrine or the burden of proving causation stand as roadblocks.

Fewer than two years later, however, the viability of major environmental public nuisance claims became uncertain again. North Carolina’s injunction against four Tennessee Valley Authority power plants in Alabama and Tennessee required the immediate installation of emissions controls costing around $1 billion. The U.S. Court of Appeals for the Fourth Circuit lifted the injunction in July 2010. Judge Harvie Wilkinson, writing the unanimous opinion for the Fourth Circuit stated:

“This ruling was flawed for several reasons. If allowed to stand, the injunction would encourage courts to use vague public nuisance standards to scuttle the nation’s carefully created system for accommodating the need for energy production and the need for clean air. The result would be a balkanization of clean air regulations and a confused patchwork of standards, to the detriment of industry and the environment alike.” North Carolina v. TVA, 615 F.3d 291, 296 (2010).

As of December 2010, that same glimmer of hope for environmentalists following North Carolina v. TVA resurfaced once again—the Second Circuit’s decision in Connecticut v. American Electric Power Company (AEP), involving a federal common law nuisance claim based on the effects of greenhouse gases (GHGs), was granted certiorari by the Supreme Court. Eight states, a city, and three land trusts separately sued the six electric power corporations that own and operate fossil-fuel-fired power plants in twenty states, seeking abatement of defendants’ ongoing contributions to the public nuisance of climate change.

The United States District Court for the Southern District of New York held that Plaintiffs’ federal common law nuisance claims were non-justiciable under the political question doctrine, and dismissed the case. The Plaintiffs appealed to the Second Circuit, which, in a lengthy opinion, held that the Plaintiffs had standing to seek an injunction restricting GHG emissions.  The implications of the Court’s decision go well beyond those seen in North Carolina v. TVA.

The Defendant corporations petitioned for review, and the Supreme Court agreed to address the following questions: (1) Do the Plaintiffs have standing? (2) Does the Plaintiffs’ claim present a non-justiciable political question? (3) Is the Plaintiffs’ public nuisance claim displaced by the Clean Air Act?

Standing: Does Climate Change Warrant A Relaxed Standard?

One of the primary issues the Court may decide to address is whether the origional Plaintiffs have standing—finding the states and other plaintiffs lack standing could overrule or substantially limit Massachusetts v. EPA. At the same time, the Court finding that the Plaintiffs have standing would likely require the Court to extend its decision in Massachusetts.

In Massachusetts, the Court ruled that the Commonwealth of Massachusetts did in fact have standing to challenge the EPA’s decision not to regulate carbon dioxide and other GHGs from the transportation sector. Ordinarily, to demonstrate standing, a litigant must show that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that a favorable decision will likely redress that injury. Massachusetts v. E.P.A., 549 U.S. 497, 518, 127 S.Ct. 1438 (2007). As the Court noted, however, “a litigant to whom Congress has accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy.” Id.

Here, in AEP v. Connecticut, Petitioners argue that Massachusetts v. EPA, on which the Second Circuit Court of Appeals relied to establish causation and redressability, is distinguishable from this case. In Massachusetts, the Court considered whether the petitioner had standing to pursue a statutory cause of action enacted by Congress, not a common law nuisance claim as in Connecticut. Respondents contend that this distinction is of “critical importance” to the standing inquiry because, in a statutory cause of action, “Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before.” [Read the Petitioner's Brief here.] The Massachusetts Court found that Congress’s decision to create a specific legal right relaxes the causation and redressability analysis for standing to enforce that right. Here, Congress has not created a statutory right authorizing the Plaintiffs’ cause of action—Plaintiffs did not invoke the Clean Air Act’s (CAA) citizen suit provision, and no federal statute authorizes federal courts to enjoin unreasonable emissions of GHGs. Thus, Petitioners argue, the Respondents may not rely on Massachusetts v. EPA and must instead satisfy traditional causation and redressability requirements.

The States and New York City counter this argument by arguing that their chain of causation and redressability are actually shorter than was the case in Massachusetts v. EPA—they seek judicial relief directly from the entities responsible for the emissions, rather than through an agency that regulates emissions. The “procedural right” afforded by Congress played a central role in the Massachusetts Court’s decision, while the issue in Connecticut, by contrast, does not involve agency action nor a statute giving the Plaintiffs the right to seek judicial review of agency action. [Read the Respondent's Brief here.]

Should the Court agree with the Petitioners, the holding in Massachusetts would be limited to its facts. The relaxed causation and redressability analysis would apply specifically to cases involving a statutory cause of action enacted by Congress, severely limiting federal common law nuisance claims. Such a decision would, in essence, leave climate change advocates having to bring their claims under the standard and more difficult causation and redressability requirements that have frustrated climate change suits in the past. On the other hand, should the Court hold that the origional Plaintiffs do in fact have standing, whether or not they ultimately bypass the political question doctrine or win on the merits, environmentalists would have a new avenue for challenges. The obvious and most direct implication is that climate change could be addressed on a massive scale with large-scale legal challenges; the largest contributors to climate change with the emission of GHGs could be held liable for billions of dollars in federal common law nuisance claims or for abatement costs. A less obvious and indirect consequence of such a decision could be the opportunity for several other environmental causes to open up. Environmental hazards the political process has left unattended could be addressed through federal common law nuisance claims, likely ending in settlements similar to that resulting from the North Carolina v. TVA suit.[1]

Political Question: The Issue is Political, But is it Ripe For the Courts?

Perhaps the largest barricade climate change suits have faced thus far is the political question doctrine. District Courts addressing previous climate change nuisance claims have relied heavily on the political question doctrine to dismiss the cases. As the Respondents in AEP point out, application of the doctrine is limited to matters of foreign affairs or constitutional law and has generally deprived the courts of jurisdiction only where they were attempting to second-guess the elected branches. The Petitioners argue, however, that a political question exits if, based on the precise facts and posture of a particular claim, adjudication would require the courts to make initial policy determination of a kind clearly for non-judicial discretion, to decide a case in the absence of judicially discoverable and manageable standard, or to otherwise to resolve a question that has been or should be decided by the other branches.

The Petitioners argue that judicially discoverable and manageable standards do not exist for a judge to “determine the ‘reasonable’ level for many aspects of the climate change issue: the level of global emissions in light of the global risks of climate change; the global costs and benefits of GHG-emitting activities, like power generation, heavy manufacturing or transportations; the cost and benefit of GHG reduction and abatement measures.” In response, Respondents argue that a district court, in crafting a remedy for the case, would focus on facts specific to the parties in the litigation, not broad policy issues. The question of what is a reasonable level of global emissions, or emissions from sources that are not from the named Defendants, is simply not pertinent.

In its ruling, the Second Circuit maintained that traditional common law provides a sufficient basis for judicial decision. The Court observed, and Respondents argue to the Supreme Court, that courts have a long history of crafting common law answers to environmental nuisance cases, and that existing common law provides basic policy parameters to apply to new and evolving circumstances. The Respondents run with the Circuit Court’s finding, emphasizing that just because the case raises politically charged issues that may be difficult to resolve, that is not a basis for abdicating the judicial responsibility to adjudicate such complex nuisance claims.

Ultimately, the Supreme Court’s determination of whether the political question doctrine bars the Plaintiffs’ claim will depend which test for justiciability the Court uses. Courts have applied a variety of tests stemming from the Supreme Court’s Baker test,[2] proceeding along two theoretical frameworks. As important as the Supreme Court’s articulation of the correct justiciability test will be, the crucial determination for the parties involved in the case, as well as environmentalists and GHG emitters, is whether or not the common law nuisance claim is barred as a political question.[3] Should the Court find that the claim is barred, it would leave environmental protection advocates exactly where they were before the case was decided by the Second Circuit—having their claims dismissed at the trial court. In the end, the Supreme Court may simply use the political question doctrine to sidestep the issue of GHGs and climate change, allowing the EPA’s new emission standards to deal with the problem.

Displacement: If Regulations are Promised, Do They Displace Nuisance Claims?

A final issue to be resolved by the Court, assuming it holds that the origional Plaintiffs have standing and the claim presented is not a political question, is whether the Clean Air Act displaces the Plaintiffs’ federal common law public nuisance claim. In Massachusetts v. EPA, the Supreme Court held that the EPA has the authority to regulate carbon dioxide as a pollutant. However, when the Second Circuit decided AEP in September, 2009, the EPA had yet to adopt GHG controls on stationary sources of pollution, like electric power facilities. In that sense, the EPA had not “spoken directly” to the concerns raised by the Plaintiffs. The Second Circuit therefore concluded that the common law had not been displaced by regulation, though the Court left open the possibility that future EPA action could displace it. According to Jonathan Zasloff, a professor of law at UCLA, “this holding is potentially significant, because it can put polluters in a real bind. Their normal strategy is to tie up new regulations in the courts for several years—maybe until they can get a more friendly administration. But now, the Second Circuit has told them that the only way to get rid of the public nuisance lawsuit is to let those regulations go into effect. The judges have told the power companies to choose their poison.”[4]

Whether the Supreme Court may determine whether the common law nuisance claim in AEP has been displaced becomes more interesting considering the EPA’s pending regulations. Following multi-year litigation, the EPA signed consent decrees with several parties[5] in December of 2010, obligating the Agency to propose GHG new source performance standards (NSPS) for coal-fired power plants and refineries. [Read the EPA settlement fact sheet here.]Those two sources together produce about 40 percent of the nation’s GHG emissions. Under the schedule outlined in the decrees, the Agency must propose standards for coal-fired power plants by July 26, 2011, and finalize them by May 26, 2012; the Agency must propose emission standards for refineries by December 15, 2011, with the those standards finalized by November 15, 2012. The expectation that there will be GHG regulation before the end of 2012 could lead the court to determine that the nuisance claim will soon be displaced; how the court addresses this possibility could have implications for other types of nuisance claims.

The Petitioners argue that the Clean Air Act, even without specific EPA regulations on power plant emissions, displaces federal common law nuisance claims on climate change.[6] The Solicitor General, arguing on behalf of the Tennesse Valley Authority, one of the origional Defendants, contends that while EPA authority to regulate GHG emissions is not sufficient to displace the Plaintiffs’ claims, the EPA’s draft of planned regulations is sufficient.[7] An extraordinary precedent would be set if the Court agrees with defense arguments—the mere authority to regulate, or a future plan to regulate, despite a lack of actual regulation, would suffice to displace common law nuisance claims. If the Court is not persuaded, however, the courts become a fertile ground for climate change litigation, at least as long until the EPA’s NSPS regulations are finalized.

A Lot at Stake for Future Litigants

For the environmental protection plaintiffs, the worst-case scenario would be for the Court to hold that the political question doctrine bars their complaint completely. After several years of promising litigation, plaintiffs would simply be left no further recourse but to hope that the EPA’s new regulations are sufficient to address climate change. While it is obvious that the Plaintiffs in this particular case would be disappointed, such a holding would prevent similarly-situated plaintiffs from ever filing a similar nuisance claim.

Another discouraging scenario for plaintiffs would be for the Court to rule that they do not have standing and the Massachusetts relaxed causation and redressibility standard is limited to cases involving a statutory cause of action enacted by Congress. While it would substantially limit a plaintiff’s ability to address environmental hazards such as climate change, the door is theoretically still open. Although a plaintiff would still need to establish causation and redressibility under the more difficult standard, their claim is not completely barred.

Assuming the Court finds standing and does not bar the claim as nonjusticiable, the best case scenario for environmental protection plaintiffs involves the Court holding that the Clean Air Act, as it currently stands, does not displace the federal common law claim for nuisance by emission of GHGs. While such a holding would indeed be a landslide victory for those seeking immediate action to curb climate change, the real impact of that decision would end once the EPA finalizes its new GHG emission standards for coal-fired power plants and refineries.

Even though such a stellar victory on the displacement issue may simply be overcome by new regulation, the ultimate result is still encouraging. Although the new EPA regulations would undoubtedly displace common law nuisance claims, the end result is GHG regulation on a national scale, covering the largest single sources of GHG emissions in the country. A ruling in favor of the Petitioners, however, would be especially disconcerting, significantly expanding the displacement theory and would, in effect, close the door on numerous similar claims where a federal agency has the authority to regulate but has not done so.

AEP v. Connecticut promises to be a closely-decided case with major implications for climate change and environmental protection litigation, regardless of the outcome. In the end, the United States is undoubtedly going to see new regulation for greenhouse gas emissions, whether at the direction of the Supreme Court or through the Environmental Protection Agency.

– Adam R. Long

The John E. Amos Power Plant is a three-unit coal-fired power plant owned and operated by Appalachian Power, a subsidiary of American Electric Power (AEP). With a nameplate rating of 2,933 MW, it is the largest utility in the AEP system. Photo by flickr user haglundc.

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

The launch of this blog features coverage of a groundbreaking U.S. Supreme Court case on carbon emissions: AEP v. Connecticut, 131 S.Ct. 813. Not only have SJEL writers taken a critical look at how the case reached the highest court, but the staff has also taken a look at the implications of the upcoming decision. An SJEL staff member attended oral arguments and shares a unique perspective on the case and possibly the Court’s leaning.