Second Circuit rules states may sue power companies over CO2 emissions

[JURIST] The US Court of Appeals for the Second Circuit [official website] ruled [opinion, PDF] Monday that states can sue power companies for emitting carbon dioxide, allegedly contributing to global warming [JURIST news archive]. The ruling came in a lawsuit brought by eight states — California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont, and Wisconsin — as well as New York City and three land trusts against coal-burning utilities American Electric Power, Southern Company, Xcel Energy, Cinergy Corporation [corporate websites], and the Tennessee Valley Authority [official website]. In 2005, a judge in the US District Court for the Southern District of New York [official website] dismissed the suit [opinion, PDF; JURIST report], finding that the plaintiffs' claim was a non-justiciable political question. In reversing that decision, the Second Circuit ruled:


It cannot be gainsaid that global warming poses serious economic and ecological problems that have an impact on both domestic politics and international relations. Nevertheless, Defendants' characterization of this lawsuit as implicating "complex, inter-related and far-reaching policy questions about the causes of global climate change and the most appropriate response to it" magnifies to the outer limits the discrete domestic nuisance issues actually presented. A result of this magnification is to misstate the issues Plaintiffs seek to litigate. Nowhere in their complaints do Plaintiffs ask the court to fashion a comprehensive and far-reaching solution to global climate change, a task that arguably falls within the purview of the political branches. Instead, they seek to limit emissions from six domestic coal-fired electricity plants on the ground that such emissions constitute a public nuisance that they allege has caused, is causing, and will continue to cause them injury. A decision by a single federal court concerning a common law of nuisance cause of action, brought by domestic plaintiffs against domestic companies for domestic conduct, does not establish a national or international emissions policy (assuming that emissions caps are even put into place). Nor could a court set across-the-board domestic emissions standards or require any unilateral, mandatory emissions reductions over entities not party to the suit.

A spokesperson for American Electric Power said the company has not decided whether to appeal [NYT report].

The Obama administration has taken several steps to curb greenhouse gas emissions. In June, the US House of Representatives [official website] passed [JURIST report] a climate bill [HR 2454 materials] that focuses on clean energy. The bill calls for a reduction in greenhouse emissions by 17 percent from 2005 levels by 2020, and by 80 percent by 2050 by establishing a cap-and-trade system. It also establishes for the first time limits on greenhouse gases that will become progressively stricter, providing an incentive for a transition to green energy sources ranging from "wind, solar, and geothermal power to safer nuclear energy and cleaner coal." The bill is now before the Senate [official website]. In May, the administration announced plans [JURIST report] for national fuel efficiency requirements. In March, the US Special Envoy on Climate Change announced [JURIST report] at a UN Convention on climate change that the US is committed [video] to the creation of an international treaty designed to combat global warming, but that such efforts would only succeed if they were economically feasible.


 

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