In a significant and surprising development, on August 24 the Solicitor General of the United States filed a brief in the Supreme Court asserting that a groundbreaking climate change decision by the Second Circuit Court of Appeals should be vacated and remanded for further consideration.
The brief, submitted on behalf of the Tennessee Valley Authority (“TVA”), a defendant in the Second Circuit case, Connecticut v. American Electric Power Co., 582 F.3d 309 (2d Cir. 2009), forcefully asserts that:
- as a matter of judicial self-restraint (under non-constitutional prudential standing doctrine), federal courts should decline to hear cases alleging that global warming creates a common law nuisance because “courts – when no statute is in place to provide guidance – are simply not well-suited to balance the various interests of, and the burdens to be borne by, the many entities, groups and sectors of the economy that, although not parties to the litigation, would be affected by a grievance that spans the globe,” and
- the predicate for the Second Circuit’s decision, that common law nuisance claims had not been displaced by EPA action, is “no longer true” because “EPA has now taken final action that, as of January 2, 2011, makes carbon dioxide subject to regulation under the [Clean Air] Act.”
In his brief, the Solicitor General requests that the Supreme Court grant the writ of certiorari, vacate the judgment of the Second Circuit, and remand the case for further proceedings to consider these issues.
The Solicitor General’s brief parts ways to a certain extent from arguments advanced by power companies in their petition for Supreme Court review, but nonetheless forcefully advances a number of arguments against using common law nuisance actions to reduce greenhouse gas emissions through case-by-case adjudication. The brief will likely take many in the climate law community by surprise, because the federal government has been perceived recently as an advocate for stronger climate regulation, and the threat of nuisance litigation may help spur legislative and/or regulatory action. One advocate reacted to the filing by stating that he felt like he’d been stabbed in the back. Some of the more powerful statements in the Solicitor General’s brief include:
- The medium that transmits injury to potential plaintiffs is literally the Earth’s atmosphere – making it impossible to consider the sort of focused and more geographically limited effects characteristic of traditional nuisance suits targeted at particular nearby sources of water or air pollution.
- Courts should not “sit as arbiters of scientific and technology-related disputes” and as “de facto regulators of power plants and other sources of pollution.”
- Public nuisance cases involving climate change are ill-suited to judicial resolution because they “present a unique confluence of a vast category of potential plaintiffs who may sue any among a vast category of potential defendants by alleging that their actions affected the entire Earth.”
The state, municipal and land trust plaintiffs can be expected to mount significant arguments against Supreme Court review and in favor of the Second Circuit’s decision. We will provide an update after those filings have been lodged.
- A copy of the brief may be accessed here (pdf)
