In September, the Second Circuit Court of Appeals reversed the district court ruling in Connecticut v. American Electric Power ("Decision"), a lawsuit initiated by eight states, New York City, and environmental organizations against six power-generating utilities. The plaintiffs allege that carbon dioxide emissions from the defendants’ fossil fuel – fired power plants in 20 states are contributing to a public nuisance — climate change and global warming. The Decision rejects a variety of defenses asserting that climate change – related damages raise "political questions" and are thus not suitable for judicial resolution.
The Connecticut case is one of several now pending in which plaintiffs are advancing various tort theories to challenge the carbon emissions by the electric utility, automotive, and oil industries. Assuming the Decision is not overturned by the Supreme Court, and assuming no superseding federal legislation, the Decision will be urged as precedent for the existence of a "federal common law public nuisance" claim and is likely to encourage the filing of additional actions asserting the theory.
Climate Change Is Not a Discrete Issue
Remedial measures to combat climate change are best designed and implemented by legislators and regulatory agencies. Judicial initiatives triggered by a finding of fault will distract society from the critical objectives of determining the actual scope of the problem, how best to solve it, and how to allocate the costs required to address it. (See "Climate Change: Policy via Litigation?" in the July 2008 issue of POWER.)
The Decision’s 139 pages of legal analysis and history trace public nuisance law back to the American colonies and British monarchy. Nonetheless, the Decision turns on the fundamental question of the capability of a court’s adjudicatory process to respond meaningfully to climate change. The Decision strains to portray climate change as a garden-variety "discrete" dispute, limited to "Defendants’ alleged public nuisance and Plaintiffs’ alleged injuries." It is not.
The Decision rationalizes that on remand the district court will not be asked "to fashion a comprehensive and far-reaching solution to global climate change." The Decision further promises that "[w]ell-settled principles of tort and public nuisance law" will provide the district court "appropriate guidance" to resolve the "discrete" issue. We respectfully disagree.
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