CT v. AEP Decision Suggests More Climate Change Litigation

CT v. AEP Decision Suggests More Climate Change Litigation

September 27, 2009 12:50

By Jocelyn Hill

Philadelphia, PA


There is scientific consensus that climate change is occurring and that global warming is caused by emissions of greenhouse gases.  Various plaintiffs, including individuals, environmental groups and state and local governments have instituted global warming litigation targeting corporations as defendants. 

In 2004, eight states and New York City filed the first climate change liability action against private corporations--the six power companies purported to be the largest emitters of greenhouse gases in the United States.  Connecticut v. American Electric Power Company (“Connecticut v. AEP”) was dismissed on the grounds that it presented non-justiciable political questions.

There have been a number of climate change lawsuits filed since that first climate change case, including Comer v. Nationwide Mutual Insurance Company, California ex rel. Lockyer v. General Motors Corporation, and most recently, Native Village of Kivalina v. ExxonMobil Corporation.  Like Connecticut v. AEP, both Comer and General Motors were dismissed on the grounds that the cases presented non-justiciable political questions.  Indeed, the courts in Comer and General Motors relied on Connecticut v. AEP in rendering their decisions to dismiss.  Both Comer and General Motors are now on appeal.  As for Kivalina, there is a motion to dismiss currently pending in that action.

This past week, the US Court of Appeals for the Second Circuit reversed the district court's decision in Connecticut v. AEP.  The appellate court’s decision that there is no need for courts to wait for a definitive policy statement from the legislative branch on global warming means that we seem to be one step closer to seeing global warming lawsuits decided on the merits.  This decision may also have a “domino effect” on the Comer and General Motors appeals, as well as on the Kivalina motion to dismiss.  It seems that causation battles loom on the horizon.  

Connecticut v. AEP also raises some interesting political questions.  The Connecticut v. AEP appeal was argued on June 7, 2006 before a three-judge panel that included then-Second Circuit Judge Sonia Sotomayor.  Because the case was ultimately decided by a two judge panel of the Second Circuit, and given the unique political circumstances of Justice Sonia Sotomayor's elevation to the U.S. Supreme Court after her role in the argument and before decision (There had been some speculation that Sotomayor held off rendering a decision to reduce the amount of potential fodder in her confirmation hearings), the most likely next step for this case is a motion for rehearing en banc.  This course is likely to add at least some time to the case’s trajectory.

If and when the case is appealed to the Supreme Court, the eventual outcome is a toss up.  Depending on how long it takes to get before the Supreme Court, President Obama may have had the opportunity to appoint one or more new justices to the bench.  This may bode more favorably for the plaintiffs in light of the Supreme Court’s record on environmental cases this term.  In any event, now that Sotomayor has been confirmed, if the case is appealed to the Supreme Court, there is also the question of whether Sotomayor would have to recuse herself. 

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