On August 2nd, five electric power companies[1] filed a Petition for Certiorari with the Supreme Court, seeking review of a Second Circuit decision holding that power companies can be sued for creating a public nuisance by emitting greenhouse gases. The litigation began in 2004, when eight states, along with the City of New York and several private land trusts, brought an action against the nation’s five largest coal-burning power companies,[2] alleging that their greenhouse gas emissions create a nuisance by contributing to global warming. The Southern District of New York dismissed the case on the grounds that it posed non-justiciable political questions. Connecticut v. American Electric Power Co., 406 F.Supp.2d 265 (S.D.N.Y. 2005). The plaintiffs appealed, and on September 21, 2009, the Second Circuit issued an opinion reversing the case’s dismissal. Connecticut v. American Electric Power Co., 582 F.3d 309 (2d Cir. 2009). A more detailed analysis of the Second Circuit’s opinion can be found in an earlier SPR blog post.
Key issues raised in the petition to the U.S. Supreme Court by the power companies include:
- The national importance of resolving whether greenhouse gases can or should be regulated by the courts on a case-by-case basis;
- Whether court decisions are precluded by new federal regulations governing greenhouse gas emissions that were not in place at the time of the Second Circuit’s decision, such as EPA/NHTSA’s joint emissions standards for vehicles and EPA’s greenhouse gas Tailoring Rule for stationary sources;
- The prospect of a proliferation of cases seeking damages for alleged injuries caused by multiple defendants’ contribution to climate change;
- Whether plaintiffs have legal standing to sue;
- Whether the Second Circuit was justified in deviating from other recent federal court decisions in which common law claims against greenhouse gas emitters have been dismissed, such as California v. General Motors Corp., 2007 WL 2726871 (N.D. Cal. 2007); Native Village of Kivalina v. ExxonMobil Corp., 663 F.Supp.2d 863 (N.D. Cal. 2009) (appeal pending); Comer v. Murphy Oil USA, 2007 WL 6942285 (S.D. Miss. 2007), appeal dismissed for technical reasons, 585 F.3d 855 (5th Cir. 2009);
- Whether a court-imposed emissions cap requires policy decisions that are not within the proper province of the courts; and
- Whether the Second Circuit’s decision represents an unwarranted extension of the Supreme Court’s decision in Massachusetts v. EPA, 549 U.S. 497 (2007).
We will provide an update when the papers opposing Supreme Court review have been filed.
For more information on emerging climate change law and policy, contact Jeff Gracer.
[1] The petitioners are American Electric Power Company, Inc., its subsidiary American Electric Power Service Corporation, Duke Energy, Southern Company, and Xcel Energy.
[2] The named plaintiffs were American Electric Power Company, Inc., its subsidiary American Electric Power Service Corporation, Cinergy Corporation (since merged into Duke Energy), Southern Company, Xcel Energy, and the Tennessee Valley Authority.
