Supreme Court to Hear Global Warming Nuisance Case: Will the Court Empower Trial Lawyers to ‘Enact’ Climate Policy?

Earlier this week, the Supreme Court agreed to hear an appeal from five electric utilities in State of Connecticut v. American Electric Power.  The utilities are challenging an appellate court decision that the “political questions” doctrine does not bar states and other plaintiffs from suing emitters of carbon dioxide (CO2) for injuries alleged to result from CO2-induced global warming.

Troutman Sanders, a law firm with an extensive environmental practice, concisely summarize the history and basic issues of the case:

Supreme Court Grants Certiorari in Second Circuit Global Warming Nuisance Case

December 6, 2010

In a victory for industry, the Supreme Court today granted a petition from a group of electric utilities for a writ of certiorari seeking review of the decision of the United States Court of Appeals for the Second Circuit in Connecticut v. AEP.  The case concerns whether greenhouse gas emitters may be sued in tort on a theory that their emissions, by assertedly causing climate change, constitute a public nuisance. 

The lawsuit was originally brought in the United States District Court for the Southern District of New York by eight states, the City of New York and several environmental parties against five electric utilities.  The suit alleged that the companies’ coal-fired plant emissions were a significant cause of global warming and constituted a public nuisance actionable in tort.  The District Court dismissed the case in 2005, holding that the lawsuit presented a “political question” that was not appropriate for judicial resolution.  However, in September 2009, the Second Circuit overturned the District Court, found that the plaintiffs properly stated a cause of action for “public nuisance,” and rejected Defendants’ argument that Clean Air Act regulation of greenhouse gases displaced Plaintiffs’ federal common law nuisance claims.

Granting the petition for certiorari does not mean that the Court will overturn the Second Circuit decision, only that the Court will now consider the issues on the merits.  One development of note is that Justice Sonia Sotomayor recused herself from considering the petition and will undoubtedly also recuse herself from the merits decision.  Justice Sotomayor was on the Second Circuit panel that heard oral argument on Connecticut v. AEP, but recused herself from taking part in the Second Circuit’s decision after learning of her nomination to the Supreme Court. 

For more information, please visit our previous discussion of the Connecticut v. AEP case.

The case pits the States of Connecticut, New York, California, Iowa, New Jersey, Rhode Island, Vermont, and three conservation groups against American Electric Power, Southern Company, Tennessee Valley Authority, Xcel Energy, Inc., and Cinergy Corporation.

 A victory for plaintiffs would be a boon to ambulance chasers throughout the land and, indeed, across the globe but a bane to the U.S. economy. It would also further erode what remains of our constitutional system of democratic accountability.

CO2 is the inescapable byproduct of the carbon-based fuels that power modern manufacturing, agriculture, and commerce. This means that classifying CO2 as a “public nuisance” has an enormous potential to endanger public health and welfare. The American Farm Bureau Federation put the point very well in an amicus brief on a related case (Comer et al. v. Murphy Oil et al.):

[B]ecause the production and use of fossil fuels and the attendant GHG emissions are so closely tied with all facets of modern life, a finding that using fossil fuels and emitting GHGs constitute a nuisance is akin to saying that modern life constitutes a nuisance. That may be true in some sense, but the necessary rejoinder is: compared to what? Certainly not as compared with pre-industrial society with preindustrial levels of atmospheric GHG concentrations. As Justice Breyer stated in his concurring opinion in Whitman v. Am. Trucking Ass’ns, in the context of air pollution regulations designed to protect the public health, “[p]reindustrial society was not a very healthy society; hence a standard demanding the return of the Stone Age would not prove ‘requisite to protect the public health.’”

Like the politicians who assured an earlier generation of Americans that the income tax would apply only to the super rich, plaintiffs in AEP v. Connecticut say they just want to compel the nation’s biggest coal-burning utilities to cut their emissions. But once the precedent is established, there can be no principled basis for shielding any class of emitters from tort claims. As I explain in a column posted at PajamasMedia.Com:

If litigators can sue large utilities for emitting CO2, they can also sue smaller utilities and manufacturers. Indeed, they can in principle sue anyone and everyone. Utilities, after all, only emit CO2 in the process of serving customers who use electricity. People lighting their homes, powering their factories, and running their laptops are ultimately to blame for destroying the planet, according to the “science” invoked by plaintiffs. In their worldview, everybody is injuring everybody else — which implies that everybody has standing to sue everybody else. Plaintiffs may preach “green peace,” but they sow the seeds of a war of all against all.

Since global warming is, by definition, global, and since anyone anywhere on the planet who uses carbon-based energy, or consumes goods and services made or transported with carbon-based energy, contributes to CO2 emissions, both the pool of potential victims and the pool of alleged injurers number in the billions! This despite the fact that without carbon-based energy, billions of people on the planet would starve and/or freeze in the dark, and billions more would not even exist. Massachusetts v. EPA’s legacy of absurd results is small change compared to the Hobbesian nightmare the Court will bring into being if it decides Connecticut v. AEP in favor of plaintiffs.

If Connecticut et al. win, firms large and small will face the threat of interminable litigation, from a potentially limitless pool of plaintiffs, in which multiple courts, acting without benefit of statutory guidance, improvise remedies — both injunctive relief and damage awards — as they see fit. A victory for plaintiffs would, in short, destroy for many firms the legal predictability essential to business planning.  

In addition, climate policy would be made by decision-makers even less accountable than the non-elected bureaucrats at EPA, who at least depend on congressional appropriations for their budgets and salaries. We would have to live under Kyoto-like restrictions on energy use imposed neither by Congress nor by EPA but by trial lawyers and activist judges appointed for life.

In their lawsuit against the utilities, plaintiffs asked the lower court to fashion a remedy whereby the utilities would be required to reduce their CO2 emissions by a “specified percentage each year for at least a decade.” Such a “remedy” is legislative in nature and therefore beyond the competence of courts and juries, as the Justice Department argued in its amicus brief, submitted to the Supreme Court on half of the Tennessee Valley Authority:  

Establishing appropriate levels for the reduction of carbon-dioxide emissions from power plants by a “specified percentage each year for at least a decade” (as Plaintiffs request), would inevitably entail multifarious policy judgments, which should be made by decision-makers who are politically accountable, have expertise, and are able to pursue a coherent national or international strategy — either at a single stroke or incrementally.

No doubt plaintiffs once hoped the specter of CO2 litigation chaos would spook industry into supporting cap-and-trade as the lesser evil, just as they hoped the prospect of EPA regulation of greenhouse gases via the Clean Air Act would tip the political scales in favor of Waxman-Markey. However, this greenhouse protection racket strategy of regulatory extortion has not worked and arguably even backfired, exposing greenhouse crusaders as self-righteous bullies. 

In November, angry voters punished supporters of the stealth energy tax formerly known as cap-and-trade. They’ll be even angrier if the Court empowers ambulance chasers to “enact” the job-killing, anti-energy policies they just rejected at the polls.