NY Appeals Court Reinstates Global Warming Lawsuit Against Power Plants

NY Appeals Court Reinstates Global Warming Lawsuit Against Power Plants

September 22, 2009 14:58

The U.S. Court of Appeals for the Second Circuit issued a decision this week that reinstates a lawsuit challenging the emission of greenhouse gases from major power plants on a novel application of the federal common law of public nuisance.


The lawsuit, known as Connecticut v. American Electric Power Co. Inc., was originally filed in 2004 in U.S. District Court in Manhattan by eight States and New York City against six electric power companies that own and operate fossil-fuel-fired power plants in 20 states. 


Four years ago this month, the district court dismissed the case, concluding that the Plaintiffs’ claims presented a non-justiciable political question.  The lower court reasoned that since neither the Congress nor the President of the U.S. had acted to address global warming, the courts could not act on the climate change impacts of greenhouse gas emissions without an initial policy determination of the executive or legislative branches of government.


On appeal, Plaintiffs argued that the political question doctrine should not close the courthouse doors to their claims; that they have standing to assert their claims; that they have properly stated claims under the federal common law of nuisance; and that their claims are not displaced by federal statutes. The power company defendants responded that the district court’s judgment should be upheld, either because the complaints present non-justiciable political questions or on a number of alternate grounds: lack of standing; failure to state a claim; and displacement of federal common law.


The Second Circuit Court held that the district court erred in dismissing the complaints on political question grounds; that all of Plaintiffs have standing; that the federal common law of nuisance governs their claims; that Plaintiffs have stated claims under the federal common law of nuisance; and that their claims are not displaced by federal statutes.  The court returned the case to the district court for further proceedings.


At issue in the case is the States’ claim that global warming, to which the power companies contribute as the “five largest emitters of carbon dioxide in the United States and . . . among the largest in the world,” by emitting 650 million tons per year of carbon dioxide, is causing and will continue to cause serious harms affecting human health and natural resources. The court noted that the States argued that carbon dioxide acts as a greenhouse gas that traps heat in the earth’s atmosphere, and that as a result of this trapped heat, the earth’s temperature has risen over the years and will continue to rise in the future. Pointing to a “clear scientific consensus” that global warming has already begun to alter the natural world, Plaintiffs predict that it “will accelerate over the coming decades unless action is taken to reduce emissions of carbon dioxide.”  The States are seeking to force the power companies to cap and then reduce their carbon dioxide emissions.


The court’s 139-page opinion is available at this link: http://www.ca2.uscourts.gov/decisions/isysquery/ec808c76-fa70-4e06-ab56-7aa2cd2758b9/3/doc/08-4122-cv_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/ec808c76-fa70-4e06-ab56-7aa2cd2758b9/3/hilite/

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