Energy Law Update: Court Decision Allows Significant Climate Change Litigation to Proceed
The United States Court of Appeals for the Second Circuit recently ruled that a public nuisance lawsuit against six electric power companies based on greenhouse gas emissions can proceed, increasing the possibility of similar suits around the country. The trial court had originally dismissed the case - Connecticut et al. v. American Electric Power et al., - as a "political question" not proper for judicial review. The appeals court, however, found that the plaintiffs had standing to bring the nuisance claims. One important factor in the court's determination that the case did not present a "political question" was the fact that the plaintiffs were not asking the court to "fashion a comprehensive and far-reaching solution" to global climate change; rather, they were only asking the court to limit greenhouse gas emissions from six specific power plants. The court also found that while the Clean Air Act gave the United States Environmental Protection Agency (EPA) authority to regulate greenhouse gas emissions, the fact that EPA had not done so meant that the plaintiffs' claims were not displaced by federal legislation.
The plaintiffs - eight states, the City of New York, and three land trusts - allege that emissions from the power plants operated by the defendants contribute to global warming, which in turn has and will continue to have substantial adverse impacts on their environments, residents, and property, and that it will cost billions of dollars to respond to these problems. They also seek to permanently enjoin each defendant to abate the nuisance by capping carbon dioxide emissions and reducing emissions by a specified percentage each year for at least ten years.
The two-judge unanimous ruling vacated and remanded the matter to the United States District Court for the Southern District of New York for trial. The third judge who had originally heard this matter - Sonia Sotomayor - did not participate in the opinion as she has since been appointed to the United States Supreme Court. This decision is particularly significant because it clearly confers standing on states, municipalities, nonprofits and others to bring very broad nuisance claims against greenhouse gas emitters, finding that the alleged impacts to global warming are an "interference with a public right in protecting natural resources."
Currently there is no federal legislation to regulate greenhouse gases, although a bill to do just that passed the United States House of Representatives this summer and is awaiting action by the United States Senate. EPA has also proposed rulemaking that would regulate CO2 emissions, but no rules have been finalized. Thus, for the time being, where there is no federal displacement of the common law, there is the possibility that similar nuisance cases may be brought. Indeed, just this week, the United States Court of Appeals for the Fifth Circuit ruled that a mass tort action against a number of chemical and petroleum companies could similarly proceed under nuisance and other tort claims. The plaintiffs in Comer et al., v. Murphy Oil USA et al. seek to hold a group of industrial defendants liable for the damage caused by Hurricane Katrina, which they maintain was made more destructive because of the impacts of greenhouse gas emissions on the climate and sea levels. The Fifth Circuit noted that it agreed with the Second Circuit's reasoning in Connecticut v. AEP, particularly on the issue of whether the matter was a political question. Unlike the AEP case, the Fifth Circuit case seeks compensatory and punitive damages against companies including, Shell Oil, Exxon Mobil, ConocoPhillips, Dow Chemical, Duke Energy and DuPont.
Kathy Milenkovski
Huntington Center
41 South High St., Suite 2200
Columbus, Ohio 43215
614.458.9792
kathy.milenkovski@steptoe-johnson.com
This alert is a periodic publication of Steptoe & Johnson PLLC and should not be construed or relied upon as legal advice or legal opinion on any specific facts or circumstances. The content is intended for general information purposes only, and you are urged to consult your own lawyer concerning your own situation and any specific legal questions that you may have. For further information about these contents, please contact Steptoe & Johnson PLLC.