Cross-posted from Warming Law.

Coverage and analysis is slowly trickling in of the landmark ruling [pdf] handed down by the U.S. Court of Appeals for the Second Circuit late yesterday, in which a 2-judge panel held that a group of states and environmental groups could sue several electric utility companies for creating a “public nuisance” through their emissions of climate-warming greenhouse gases. This is a truly historic ruling that should be celebrated and utilized by environmentalists, but that also brings with it certain dangers. In this, the first of two posts we will be publishing discussing the implications of this case, we will address the background and context of this ruling. In the second post, we will discuss its possible impacts and what steps environmentalists should take next.

In this case, Connecticut v. American Electric Power, No. 05-5104) (2nd Cir, Sept. 21, 2009), eight states (Connecticut, New York, California, Iowa, New Jersey, Rhode Island, Vermont, and Wisconsin), along with the City of New York and several private land trusts (including the Open Space Institute and the Audubon Society of New Hampshire), sued six electric utility companies (including American Electric Power, Southern Company, Xcel Energy, and Cinergy Corporation) seeking to abate the “public nuisance” of global warming. Plaintiffs argued that the energy companies were the largest emitters of carbon dioxide in the U.S., and were collectively responsible for “ten percent of worldwide carbon dioxide emissions from human activities.” Claiming to represent the interests of 77 million people, their environments, and their economies, and citing the harmful impacts of global warming on these interests, the plaintiffs sought to require each of the electric utilities “to abate its contribution to the nuisance by capping its emissions of carbon dioxide and then reducing those emissions by a specified percentage per year for at least a decade.”

In contemplating the impact of this case, it is useful to understand where “nuisance” litigation fits in the larger picture of climate litigation. To date, environmentalists and industry have tried to use courts in a variety of ways to bring, or block, action on climate change. Environmentalists have attempted to compel state governments as well as the federal government to regulate the emissions of greenhouse gases under several existing federal statutes, most notably the Clean Air Act, though also under the National Environmental Protection Act and the Endangered Species Act. (Massachusetts v. EPA — probably the most famous global warming case to date — represented the pinnacle of these efforts, in which a coalition of states and environmental groups convinced the Supreme Court that carbon dioxide qualified as a “pollutant” under the Clean Air Act and could therefore be subject to EPA regulation without any further authorization from Congress.) Meanwhile, industry has attempted to use courts to block federal and state action on climate change, arguing, for example, that state-led global warming initiatives are preempted by federal law.

“Nuisance” cases have, in recent years, represented the third, and least successful, prong of global warming-related litigation. Several lawsuits — including a recently-dropped lawsuit brought by California against automakers, and the Connecticut v. AEP lawsuit against electric utilities — sought to convince courts to use their common law authority to hold emitters responsible for the tort of creating a “public nuisance” in the form of global warming.

This approach may seem far-fetched in an environmental world dominated by an alphabet soup (CAA, CWA, RCRA, NEPA, CERCLA, etc) of federal statutes, but as yesterday’s opinion effectively explains, courts have actually had a long and robust history of taking leadership on environmental issues by using their common law authority. The Second Circuit’s opinion noted, for example, that between 1907 and 1915, the Supreme Court issued four separate rulings addressing the “nuisance” of air pollution, in response to actions brought by the State of Georgia against the nearby Tennessee Copper Company. Georgia successfully argued the Company was emitting noxious emissions that were destroying plants and crops in Georgia, and in a sequence of rulings the Court created a mandate establishing the boundaries of acceptable emissions and minimum abatement requirements for the Company, finally “set[ting] definitive emissions limits, impos[ing] monitoring requirements, and apportion[ing] costs between the defendants.” Of course, decades later, the courts’ common law authority to address noxious emissions would be displaced by the passage of the Clean Air Act, yet prior to this legislation courts were responsible for assigning liability to polluters.

The story of Georgia v. Tennessee Copper mirrors precisely what is happening in this suit. Global warming has been diagnosed as a serious health and environmental risk for decades, but the political branches have not responded, making court action necessary. Despite this history, however, environmental advocates were skeptical that nuisance suits aimed at addressing greenhouse gas emissions would ever go anywhere, for several reasons:

1. The magnitude of global warming is much larger than anything courts have tried to tackle in the past using common law.

2. Conservatives have successfully raised doubts about whether global warming is even a justiciable issue, and whether courts have any constitutional role invoking their common law authority to evaluate its harmful impacts.

3. Massachusetts v. EPA, which empowered the EPA to address greenhouse gas emissions (albeit within the confines of the Clean Air Act), served to provide federal courts with an out, meaning they could claim global warming was already being addressed by the political branches of government and that they were therefore displaced from ruling on it.

Indeed, to date, the handful of global warming-related nuisance lawsuits brought in federal court have been dismissed at the district court level, all on similar grounds. (A recent status update of several common law global warming-related lawsuits can be found here.) Connecticut v. AEP in particular was dismissed by a federal judge in New York’s Southern District in September 2005 for “presenting non-justiciable political questions” that were beyond the court’s jurisdiction. Plaintiffs appealed to the Second Circuit, and were assigned a panel that included then-Circuit Court Judge Sonia Sotomayor, along with two Republican appointees — Judge Joseph M. McLaughlin (appointed by George H.W. Bush) and Judge Peter W. Hall (appointed by George W. Bush). The Court of Appeals heard oral argument on June 7, 2006, after which three years passed with no opinion. (At her confirmation hearing, now-Justice Sotomayor was asked by Senator Chuck Grassley what had happened to the “missing case.” She declined to answer, citing ABA rules for judges that precluded her from discussing outstanding decisions, though she did explain that the decision was initially delayed by one year because the panel was waiting for the Supreme Court’s ruling in Massachusetts v. EPA.)

Thus, yesterday’s opinion quietly emerged after more than a three-year wait, and with only two of the three assigned judges’ signatures, since Judge Sotomayor had been elevated to the Supreme Court. In a sweeping ruling, the Second Circuit thoroughly refuted the district judge’s dismissal of the case, doing away with virtually every argument put forward by the energy industry for why this case should not go forward. In the words of the Court of Appeals:

We hold that: (1) Plaintiffs-Appellants’ claims do not present non-justiciable political questions; (2) Plaintiffs-Appellants have standing to bring their claims; (3) Plaintiffs-Appellants state claims under the federal common law of nuisance; (4) Plaintiffs-Appellants’ claims are not displaced; and (5) the discretionary function exception does not provide Defendant-Appellee Tennessee Valley Authority with immunity from suit. Accordingly, we VACATE the judgment of the district court and REMAND for further proceedings.

The 139-page opinion goes on to methodically address every concern that industry raised about the courts’ taking a role in adjudicating global warming, effectively holding that while climate change may be larger in scale than past problems the courts have addressed, it is not fundamentally different from any of those problems, and there are ultimately no jurisprudential obstacles to the courts taking this on. The court further noted that while Massachusetts v. EPA may mean that court action on global warming can be displaced by regulatory action, the fact that the EPA has not yet acted on its Clean Air Act authority to regulate greenhouse gas emissions means the authority of the courts is not presently displaced. The Second Circuit therefore remanded the case back to the district court, which must now determine whether the defendants in this case are in fact guilty of creating a public nuisance through their emissions of greenhouse gases, as the plaintiffs have charged.

The opinion thus opens up a whole new avenue by which environmentalists can seek to compel major emitters to modify their global warming-causing behavior and, without a doubt, this is wonderful news. But as we will discuss in Part II, rather than heading back down to the district court, industry may try to take this ruling up to the Supreme Court. If it does take this route, and the Court decides to review the case, there would of course be no guarantee that the Court’s conservative majority would agree with the Second Circuit’s ruling. For this reason, environmentalists and progressives should work quickly to take advantage of this ruling as another significant prod to get EPA, and, more important, Congress, to take action on regulating carbon emissions. The best solution here would be for EPA or Congress to move quickly and displace the courts’ role here, producing a more comprehensive solution to the global warming crisis and preserving this extremely good precedent for use on another day.

Read part II.