If Congress and the president fail to tackle global warming, can courts step in? Can federal judges allow people struggling with the losses of global warming to sue polluters directly?

The idea may at first seem crazy. In a legal world obsessed with claims of judicial activism, the image of a judge taking on a global problem like climate change seems like the punch line to a bad joke at an Exxon board meeting. But it turns out there is a long and proud history of judges addressing pollution in the absence of environmental regulation. For much of the last century — long before Congress acted — federal courts allowed plaintiffs to seek injunctions to stop all kinds of pollution. Successful suits prevented an ore smelter from releasing deadly atmospheric arsenic over the homes and families of Utah, the City of Chicago from draining its sewage into St. Louis’ drinking supply, and New York City from dumping its garbage into the Atlantic, where it washed up on the beaches of the New Jersey Shore. Today, states and environmentalists are turning to these and other historic precedents to make the case that climate change, too, belongs in the courts — when the other branches of government refuse to act.

The current battle began in 2004, the midpoint of the Bush presidency. A coalition of states and private land trusts, led by the State of Connecticut, that were frustrated with Washington’s failure to introduce legislation or regulations limiting greenhouse gas emissions sued several of the nation’s largest electric utilities in Connecticut v. American Electric Power. The coalition alleged that the companies’ greenhouse-gas emissions amounted to a “public nuisance” in the form of global warming. Under the nuisance principle — one of the oldest in English common law — a property owner may ask the court to stop a defendant who is interfering with the owner’s enjoyment of his own property, and, in some circumstances, to pay damages. In the Connecticut case, the plaintiffs thus sought to persuade the court to order the utility companies to reduce their greenhouse-gas emissions by showing how such gases cause global warming, which in turn was creating increased temperatures, alternating drought and floods, destruction of natural habitats, and corresponding decreases in property values and human health and welfare.

Though the cause-and-effect aspect of this argument might seem hard to prove in court, global-warming victims in other corners of the country started filing similar lawsuits. In Comer v. Murphy Oil, residents of Mississippi’s Gulf Coast sued nearby oil refineries for damages they suffered during Hurricane Katrina, alleging that the refineries’ greenhouse-gas emissions contributed to the force of the storm. In 2008, in Native Village of Kivalina v. Exxon, residents of a small village on a barrier island off the Alaskan coast, whose homes are being steadily submerged by rising sea levels, filed suit against two dozen energy companies for their contribution to climate change. The villagers, who are native Inupiat, seek more than $400 million in damages to cover the cost of relocating their homes, again using the doctrine of nuisance law.

Each of these cases was dismissed at the trial court level. The judges said that the suits raised a “political question” not fit for the judicial branch to rule on-a tool that allows judges to punt tricky cases they don’t want to decide. Two of the lower courts also said that the parties lacked legal standing to bring the lawsuits, because they could not show their injuries were sufficiently traceable to the defendants’ conduct. However, the plaintiffs appealed these dismissals to federal courts of appeals, arguing that they do have standing and that the “political question” doctrine does not apply.

Then, to the shock of the legal community and even some environmentalists, two federal appeals courts reversed these rulings. Last September, after more than three years of deliberating, a two-judge panel on the U.S. Court of Appeals for the 2nd Circuit overturned the dismissal of Connecticut v. AEP in a sweeping 139-page opinion. A few days later, a three-judge panel of the U.S. Court of Appeals for the 5th Circuit released a similar opinion reinstating the Katrina victims’ lawsuit. The five judges responsible for these rulings-three of whom were appointed by Republican presidents-found that the plaintiffs had standing and that the evidence of the relationship between greenhouse gases and climate change was sufficient for the cases to go forward. The courts did not punt because of the “political question” doctrine, pointing out that federal courts have successfully handled public nuisance claims involving environmental damage for more than a century.

For good reason, many climate activists view 2009 as a disappointing year, filled with bad news coverage and missed opportunities. The Senate seems a long way from passing a clean energy jobs bill, and the long-anticipated U.N. summit in Copenhagen has come and gone, producing only an unambitious, non-binding agreement among world leaders. Moreover, late last year, the climate movement suffered a blow to its image following the “Climategate” hacking scandal and reports that, for the first time in years, a decreasing number of Americans believe in human-made climate change. As we enter 2010, many climate activists say the situation is bleak.

But looking more closely at what transpired in 2009, and by focusing on actions by the Obama EPA, the states, and the courts, we can see that real progress was in fact made last year. A year ago, Warming Law published a four-part blog series entitled “President Obama’s Roadmap to Cap-and-Trade,” the general thesis of which was that the Obama administration could and should use its authority under the Clean Air Act to introduce greenhouse gas regulations without congressional approval — partly to prod Congress into passing a tailor-made climate bill, but also to serve as a critical regulatory “back-up plan” in the event Congress fails (as it has done so far) to pass legislation. We also argued that action by states could serve a similar dual function of prodding Congress to act and supplying a layer of climate regulation that would limit greenhouse gas emissions until Congress gets its act together.

It is no small feat that many of our recommendations and predictions from the “Roadmap” have been realized: despite other setbacks, the U.S. has now adopted its very first nationwide auto emission standards for greenhouse gases, and is poised to adopt its first set of mandatory, federal power plant regulations specifically targeting greenhouse gases. Ongoing state action has resulted in the country’s first mandatory cap-and-trade scheme for greenhouse gases, and a significant revival in tort-based climate litigation may soon lead to yet another source of protection from (and pressure on) firms that emit greenhouse gases.

These changes are very important. Not only are they successfully increasing pressure on Congress to address climate change legislatively, but they are reducing emissions now and setting the foundation for more comprehensive reductions in the future. Below, we will briefly review the successes of 2009, and explain why together, they indicate we are in a much better place at the start of 2010 than some might think.

Raising auto emissions standards

Almost immediately upon taking office, the Obama team began working feverishly to strengthen the federal response to climate change, making the first and biggest strides in auto emission standards. Last January, President Obama ordered the EPA to reconsider its decision to deny the state of California a long sought waiver allowing it to implement strong auto emission standards for greenhouse gases. The president followed this up in May with an announcement that he had reached a deal with California and floundering automakers, not only to grant California its desired waiver but also to adopt the state’s proposed standards nationwide. This deal will soon result in the country’s first nationwide auto emission standard for CO2, and will bring the minimum fuel efficiency standard to 35.5 mpg by 2016 while producing an estimated 30 percent reduction in greenhouse gas emissions from new vehicles. 

As part of its deal with California, the White House also secured the automakers’ pledge to drop numerous legal challenges against states that had adopted California’s standards, which the industry previously argued were “preempted” by federal law. This prompted California Air Resources Board Chairwoman Mary Nichols to state within hours of President Obama’s announcement that California would immediately start developing an even better set of emissions standards to begin phasing in starting in 2016 — once the new round of standards is fully in force. In addition, the day after announcing the deal over auto emissions, President Obama issued an executive order formally reversing his predecessor’s position on preemption, ordering all government agencies to review regulations issued in the previous ten years and “scrub” them of unjustified pro-preemption language. President Obama’s decision to grant California’s waiver, and his further action on preemption more generally was thus a critical shift from the Bush administration’s aggressive stance toward federal “preemption” of state environmental policies, signaling Obama’s clear support for states’ historical role as policy innovators and “laboratories of democracy.” This is a huge victory for progressives.

Complying with Massachusetts v. EPA

The Obama administration has also taken significant steps in the past year to comply with Massachusetts v. EPA, in which the Supreme Court held that CO2 qualifies as an “air pollutant” under the Clean Air Act. The Court’s decision, as we argued in last year’s “Roadmap,” remains among the most important milestones to date in compelling a government response to climate change, as the Court effectively created a mandate for the EPA to investigate the impact of CO2 on human health and welfare, and, if that impact were deemed dangerous, to use its authority under the Clean Air Act to regulate CO2 emissions.

Within weeks of her confirmation, Obama-appointed EPA Administrator Lisa Jackson announced that the agency would begin preparing the “finding of endangerment” required by the Clean Air Act.  Last month — coinciding with the Copenhagen summit — Jackson announced that the process had been finalized, clearing the way for the agency to begin regulating CO2 emissions.  In addition, in September, the EPA appeared to foreshadow greenhouse gas regulations when it proposed the “tailoring rule,” which stated that with respect to greenhouse gases a source would not qualify as a “major emitter” (and therefore would not be subject to certain regulations) unless it emitted more than 25,000 tons of carbon dioxide, or carbon dioxide-equivalent gas per year. (For most pollutants regulated by the Clean Air Act, a source is considered a “major emitter” if it emits greater than 100, or in some cases 250, tons per year of an air pollutant; thus the tailoring rule allows the agency to promulgate rules for greenhouse gases without affecting the millions of small farms and businesses that emit relatively small amounts of carbon.) With these developments in place, the EPA is now free to regulate nearly 70 percent of the total greenhouse emissions from stationary sources nationwide.

These changes in position by the federal government deserve to be both applauded, and defended, by the environmental community. President Obama has strongly signaled that he will make good on his campaign promise to regulate greenhouse gases using the Clean Air Act if Congress fails to act within 18 months of his coming to office. Indeed, our nation may see its very first set of targeted greenhouse gas regulations for power plants in place by the end of 2010.

There is also no doubt that industry and Congress have been moved by the president’s actions. A shift in industry attitudes was evident last year when several high-profile companies announced their departure from the U.S. Chamber of Commerce due to its unwavering opposition to a climate bill, while a growing list of industry leaders have expressed — at least in name — their support for a bill. And since the announcement of the endangerment finding, Republicans in Congress, led by Senator Lisa Murkowski (R-Alaska) and Representative Joe Barton (R-Texas), have stepped up efforts to remove EPA’s Clean Air Act authority to regulate greenhouse gases, signaling their fear of the EPA’s recent moves to comply with Massachusetts v. EPA. These developments reveal that progress over the past year is having the desired effect of prodding Congress to start addressing global warming, as well as laying the groundwork for a layer of regulation that will have real impacts on emissions.

States & courts

Last year also saw the country’s very first mandatory cap-and-trade scheme take effect:  the Regional Greenhouse Gas Initiative, or “RGGI.” (Pronounced “Reggie.”) This program, which covers major power plants in 10 northeastern states, entered its first mandatory compliance stage in January 2009. Though RGGI has a modest goal of achieving a 10 percent reduction in greenhouse gases below 2008 levels by 2018, it will prevent carbon emissions in the Northeast from rising, and its relative stability, low allowance prices, and significant revenue for state governments have made it a model for lawmakers in Washington. RGGI remains an important limit on greenhouse gas emissions in the Northeast, as well as a reminder to industry and national lawmakers that states can and will address greenhouse gas pollution if Congress does not.

Finally, perhaps the most surprising development over the past year — and one that has nothing to do with President Obama’s election — is the revival of tort-based climate litigation. At the start of 2009, most experts predicted that “nuisance” lawsuits — in which victims of global warming sue industries for the “nuisance” of climate change — would go nowhere. At least three federal lawsuits had been filed by states, cities, environmental groups, and even Katrina victims seeking damages from energy and auto companies, and all three had been dismissed. Yet in September, federal Courts of Appeals surprised just about everyone by reversing the dismissal of two key nuisance cases. Though the next steps for the cases remain uncertain, these important decisions have put industry polluters on notice that they may soon have to defend their global warming behavior in a court room, and have given Congress yet another reason to pass a climate bill that would displace expensive tort-based litigation. 

Of course, as is illustrated by the “nuisance” cases, progress in climate policy over the coming years will depend in part on the individuals who are nominated and confirmed to sit on the federal courts, where they will have the power to undermine or uphold federal and state action and other efforts to address climate change. Industry has already filed federal lawsuits challenging the EPA’s endangerment finding and the California waiver, lawsuits that should remind both the White House and climate activists that judicial nominations are a key component of a successful strategy to address global warming.

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The developments listed above reveal that, despite setbacks, the country is in the best shape climate policy-wise than it has ever been. Climate activists reeling from the apparent failures of 2009 should be rallying behind these victories and encouraging more of them, as they foreshadow even greater action in the coming year — particularly with the potential adoption of EPA regulation of carbon emissions. These victories mean the prospects for eventual, meaningful congressional action will only continue to improve, and that even without such action, real limits on greenhouse gas pollution may soon be in place. 

A federal appeals court has reversed the dismissal of a lawsuit brought by victims of Hurricane Katrina seeking damages related to global warming, while a federal district court in California has dismissed a similar lawsuit brought by an Alaskan village allegedly disappearing beneath rising sea levels. These rulings come weeks after the Second Circuit threw tort-based climate litigation back into the limelight when it revived a similar “nuisance” lawsuit brought by states and environmental groups against several major electric utilities.

On Friday, the U.S. Court of Appeals for the Fifth Circuit reversed and remanded a lawsuit that had been dismissed on political question and standing grounds by a federal district court judge in Mississippi. In Comer, et al. v. Murphy Oil USA, et al., property owners along Mississippi’s Gulf Coast filed a class action lawsuit against several insurance companies as well as oil companies seeking damages related to Hurricane Katrina. The plaintiffs alleged that the oil companies had “engaged in activities that have produced the greatest single source of by-products leading to the development and increase of global warming,” and that the environmental conditions in the Gulf of Mexico that fostered the strengthening of Hurricane Katrina were “the direct result of” global warming. Their case was dismissed in August 2007.

Last week, overturning that dismissal, a three-judge panel of the Fifth Circuit ruled that the plaintiffs have standing to bring their public and private nuisance claims, as well as trespass and negligence claims, and that none of these claims present non-justiciable political questions. (The Court of Appeals affirmed the dismissal of several other claims, including claims alleging unjust enrichment, fraudulent misrepresentation, and civil conspiracy). In a footnote, the Fifth Circuit acknowledged and concurred with the Second Circuit’s reasoning in Connecticut v. American Electric Power (AEP), a similar case in which the Second Circuit recently held that a group of states and environmental groups could sue several electric utility companies for allegedly creating a “public nuisance” through their emissions of climate-warming greenhouse gases.

Softening the impact of this Fifth Circuit victory, however, is the news that a similar case still at the district court level was dismissed late last month. In a ruling dated Sept. 30, Judge Saundra Brown Armstrong of the Northern District of California dismissed Native Village of Kivalina v. ExxonMobil Corp., also on political question and standing grounds.

In Kivalina, a small, primarily-Eskimo village situated on a barrier reef that is disappearing from Alaska’s northwest coast — allegedly due to rising water levels — sought damages from 19 of the country’s biggest oil companies for their alleged contribution to global warming, which the village described as “a nuisance that is causing severe harms to Kivalina.” In addition, the village had claimed that several of these companies were engaged in a civil conspiracy, by working in “agreement with each other to mislead the public with respect to the science of global warming and to delay public awareness of the issue — so that they could continue contributing to, maintaining and/or creating the nuisance without demands from the public that they change their behavior as a condition of further buying their products.”

In contrast to the Fifth Circuit panel, the Kivalina court took issue with the Second Circuit’s decision in the AEP case when determining whether the case had the “judicially discoverable and manageable standards” necessary for it to be justiciable. In holding that it did not, the district court disagreed with the Second Circuit’s assertion that “well-settled principles of tort and public nuisance law” provided appropriate guidance for these sorts of claims, finding that the nature of global warming was different from the environmental problems that have been at issue in previous tort-based cases. Similarly, the Kivalina court held that the plaintiffs lacked Article III standing because they had failed to sufficiently demonstrate that the cause of global warming was traceable to the 19 defendants.

Despite the Court’s ruling in Kivalina, the ruling by the Fifth Circuit, combined with the recent sweeping ruling by the Second Circuit in the AEP case, invites further attention to the progress of tort-based climate litigation and its role in motivating both the EPA and Congress to address global warming. Until recently, these lawsuits seemed unlikely to prevail, since three noteworthy cases — Comer, AEP, and a third suit, brought by California against automakers — had been dismissed at the district court level and seemed stalled during the appellate process. In the past month, however, both the Comer and the AEP dismissals have been reversed on appeal, possibly boding well for the plaintiffs in Kivalina should they choose to appeal. (The California suit was voluntarily dropped earlier this year, while pending an appeal in the Ninth Circuit).

As we have reported before, this litigation strategy as a means to address global warming has therefore gained considerably more traction in recent weeks, increasing the pressure on the political branches of our federal government to take action on climate change if they would prefer that courts not devise their own remedies for plaintiffs who have been impacted by global warming.

No word yet from the plaintiffs in Kivalina or the defendants in Comer on whether they will appeal these decisions. As always, stay tuned to Warming Law for updates on these and other pertinent cases.

In an earlier post, we explored the background, context, and historical significance of the Second Circuit decision handed down late Monday in Connecticut v. AEP, in which the court ruled that a group of states and environmental groups could sue several major electric utilities for contributing to a “public nuisance” in the form of global warming. In this post, we’ll explore the various next steps and implications of this decision, and explain why it brings even a greater sense of urgency to Congress’s ongoing deliberations of climate legislation.

There are two parallel arenas in which this ruling may have consequences: the courts and the federal government. The most immediate consequences of this ruling will be played out through the courts. Now that the Court of Appeals for the Second Circuit has determined that the plaintiffs have standing and can bring their claim, the electric utilities could simply return to the lower court as ordered, and proceed to defend themselves against the charge that they are contributing to a public nuisance in the form of global warming.

Alternatively (and more likely), the utilities may appeal this ruling to the U.S. Supreme Court. There are enough elements in the Second Circuit’s decision that vary with other federal appeals courts’ rulings (notably on issues of standing) that there is a decent chance the Court would actually hear the case, and if that happens, neither party would have reason to be overly confident. In its only other major global warming decision, Massachusetts v. EPA, the Court ruled in favor of states and environmental groups, recognizing that they had standing and agreeing with the argument that carbon dioxide satisfies the definition of “air pollutant” under the Clean Air Act. On the other hand, Massachusetts v. EPA was decided by a narrow one-vote margin, and there is no guarantee that Justice Anthony Kennedy, who is generally considered the Court’s “swing vote,” would rule again with environmentalists on this case. Also, in recent years, the Court has proven inhospitable to environmentalists who have brought claims against industry, ruling against them in all five of the environmental cases it heard last year, and in addition has been increasingly conservative in granting public interest litigants standing. Justice Kennedy swings on environmental cases, but more against than for.

(Note: One other possibility is that, before going to the Supreme Court, the utilities may ask the full Second Circuit to rehear the case en banc, which could also result in a delay of the case or reversal of Monday’s ruling.)

Without a doubt, the worst-case scenario for environmentalists here is that the Supreme Court takes and reverses this ruling — not only eliminating its valuable precedent for future cases, but also creating new nationwide precedent that could preclude the possibility of similar nuisance-based global warming litigation (or even other types of environmental litigation) for years, if not generations, to come.

The second arena in which this decision might have an impact is, obviously, the political branches, through regulatory and legislative action in Washington. Environmentalists and industry seem to agree that the courts are not the place to develop a solution to global warming, and as other commenters have noted, this week’s ruling is certainly a prod to both the EPA and Congress to get on with regulating greenhouse gas emissions. As we explained in Part I, in the absence of action by the political branches, courts have historically stepped in and used their common law authority to address environmental problems. However, once the political branches have taken action — such as by passing legislation addressing an issue, or promulgating regulations — the courts’ power to adjudicate the issue outside the scope of legislation is “displaced.”

Ironically, that is what all parties to this litigation would like to have happen here, and that would certainly be the best outcome for environmentalists. Nuisance claims and other tort claims, just like EPA regulations under the Clean Air Act, will never be a substitute for a comprehensive, flexible, economy-wide climate bill that attaches a price to carbon emissions. Moreover, even if the courts’ authority to deal with this case is eventually displaced, the Second Circuit’s decision, if not overruled, will still hold open an avenue by which other states and environmental groups may be able to bring future nuisance claims against polluters. We’re therefore hoping that action by the political branches comes before the Supreme Court has an opportunity to review the Second Circuit’s decision in this case, leaving environmentalists with the best of both worlds: an effective climate bill, and excellent precedent to aid us in future legal endeavors.

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.

The Washington Post has been editorializing in favor of congressional action to address climate change for more than a decade, but an editorial Monday makes us wonder if they mean it.

The piece, entitled “Regulating Carbon,” bears a menacing subtitle:

The EPA is getting ready. Congress? Not so much. And that’s about to become a huge problem.

Actually, not so much.

The Post gets the first part of its editorial spot-on in stating that “[t]he most effective way for the United States to fight global warming is for Congress to put a price on carbon, either through a cap-and-trade system or, as we’d prefer, a carbon tax that rebates the revenue to tax payers.” Given that Congress has currently put climate legislation on hold, however, the Post explains that the EPA may soon start regulating carbon dioxide itself using its authority under the Clean Air Act — something the Supreme Court clearly said it could do in Massachusetts v. EPA (2007). We have argued that the possibility of EPA regulation serves as an important backstop on climate change, both because it will prod Congress to take action sooner rather than later, and because it provides a basic level of carbon regulation in the event Congress fails to pass anything at all.

The Post, however, doesn’t seem to have faith in this mechanism. In fact, it dismisses it, opting instead to assert the obvious:

The Clean Air Act … is breathtakingly unsuited to the great task of battling global warming. It would provide no economy-wide and declining cap on carbon, no market signal to industry or clean-energy investors that could spark innovation and greater efficiencies. There would be a thicket of red tape and regulations but nowhere near the reduction in greenhouse gas emissions of the Waxman-Markey bill, let alone those called for by the Intergovernmental Panel on Climate Change.

The specter of EPA regulation is supposed to scare Congress into more rational action. Yet if Congress does not act, it’s likely that the EPA will. It won’t be pretty.

Not pretty? Is this some sort of beauty contest? As the editors of the Post surely know, no one — not President Obama, not EPA Administrator Lisa Jackson, not members of Congress — has claimed for a moment that the best way to tackle climate change is via the Clean Air Act. Since last year’s campaign, the President has consistently stated that he would prefer a flexible, market-based cap-and-trade bill to address climate change, but that his administration would invoke its Clean Air Act power in the absence of such action. This would, of course, be the responsible and legally required thing for him to do. And some of the policies this approach would produce — like the already announced hike in CAFÉ standards — are long-overdue, good ideas.

Yes, we need a shiny, new, market-based system to trigger efficient greenhouse gas emissions. But advocates for such a system should resist the urge to trash the existing regulatory tools that will provide the leverage needed to bring this best-case-scenario into existence.

During the widely-watched Supreme Court re-argument Wednesday morning of Citizens United v. Federal Election Coalition – a case that challenges the constitutionality of over a century of campaign finance laws restricting corporate spending during elections – the Justices’ varying opinions on corporations were on full display. While some, notably Ruth Bader Ginsburg and Stephen Breyer, expressed concern at the enormous influence of “mega-corporations” in politics, others seemed far more sympathetic to corporations’ motives.

During an exchange with Solicitor General Elena Kagan (arguing on behalf of the FEC) over whether corporations should be permitted to influence policymaking, Justice Anthony Kennedy said:

Corporations have lots of knowledge about environment, transportation issues, and you are silencing them during the election. (52:7)

Later in the argument, Kennedy questioned whether it is appropriate to restrict …

… the phenomenon of television ads, where we get information about scientific discovery and environment and transportation issues from corporations, who after all have patents because they know something. (73:5)

(Transcript here.)

Justice Kennedy’s comments warrant some analysis, especially given their implications for the climate debate. (Most experts came away from Wednesday’s argument expecting Justice Kennedy to join his conservative colleagues in striking down campaign finance restrictions.) Kennedy suggests that corporations have a right (a constitutional right, no less) to share their abundant knowledge about scientific discovery and the environment during elections. This assertion, however, is based on two horribly flawed premises:

1. Corporations’ “goal” in spending money during elections is to share their knowledge.

2. Corporations have no way of sharing this knowledge other than spending money to influence elections.

The first is naïve. As General Kagan herself noted during argument (countering an assertion by Chief Justice Roberts that corporations have “diverse interests” in elections), corporations have “a fiduciary obligation to their shareholders to increase value. That’s their single purpose, their goal.” In other words, the reason a corporation tries to influence elections is to increase its profit, not to educate the masses.

The second is even more suspect. Does anyone believe that energy companies like Exxon Mobil face any difficulty sharing their “knowledge” and opinions regarding environmental policy? Here are a few of the many, many ways corporations like Exxon communicate with us:

• Prolific, expensive, carefully-targeted advertising. This, of course, happens on a scale much greater than individuals, small non-profits, or campaigns can hope to match. ExxonMobil, for instance, for years ran a quarter-page “Op-Ad” on the editorial pages of the The New York Times and has recently been putting an ad on the front page of the Times about auto emissions.

• Influencing judges. ExxonMobil, has funded fancy junkets to “educate” federal judges about climate change. Interestingly, Justice Kennedy himself agreed in an opinion (Caperton v. Massey Coal) handed down last Term that expenditures by CEO Don Blankenship of Massey Energy to influence a West Virginia state judicial election resulted in a serious conflict of interest when Massey came before the judge as a litigant. Implicit is the acknowledgement that corporate campaign expenditures can create, or appear to create, undue influence on elected officials.

• Influencing “science.” Corporations, especially energy companies like Exxon, fund and influence climate “research” and “experts” to cast doubt on climate change. Turning again to the Supreme Court’s own record on this: in Exxon v. Baker – the 2008 case dramatically reducing the punitive damages awarded to the victims of the Exxon Valdez oil spill – Justice Souter (finding in Exxon’s favor!) noted in a footnote that while the Court was aware of a “body of literature” supporting Exxon’s claims regarding the efficacy of punitive damages, “because this research is funded by in part by Exxon, we decline to rely on it.” (pp.27-28)

The list goes on.

In short, corporations have a huge, some would say detrimental, impact on environmental policy. Spending on elections may be the sole area where Congress and the courts have repeatedly determined it necessary to keep corporate influence out — and this restriction ought to be kept in place.

Let’s hope in his deliberation of Citizens United, Justice Kennedy realizes that while corporations may “know something” about the environment, that hardly justifies allowing them to spend unlimited money to influence the outcome of elections. If he doesn’t, we could find ourselves with elected officials even more beholden to ExxonMobil.

The first of these decisions, Altria Group, Inc et al. v. Good et al., concerned a class-action lawsuit brought by smokers in Maine, who claimed the manufacturers of “light” cigarettes used deceptive practices by promoting their product as having fewer health risks than normal cigarettes. The cigarette makers, by contrast, argued that they were immune from state fraud claims if they have met federal cigarette labeling law. In a 5-4 ruling handed down in December, the Supreme Court agreed with the smokers, holding that federal cigarette labeling law does not preempt state fraud claims. Then, in a similar and much higher-profile decision handed down earlier this month, Wyeth v. Levine, the Court held that federal drug labeling law also does not preempt state “failure to warn” lawsuits against drug makers.

In both these cases, the Court determined that states had the right to protect their citizens when Congress had not explicitly stated an intention, through federal legislation, to preempt state authority.

These decisions should help states that are currently defending their auto emissions standards against auto industry challenges. In four ongoing federal lawsuits, automakers and dealers are challenging state emissions standards aimed at reducing greenhouse gases from new vehicles, claiming that those standards are preempted by the federal Energy Policy and Conservation Act (EPCA), which empowers the Department of Transportation to establish national “fuel economy” standards (which may sound similar to, but are technically different from, “auto emissions” standards).

In 2004, California adopted auto emission standards calling for a 30% reduction in greenhouse gas emissions from new vehicles by 2016, which it has the right to do under the Clean Air Act provided it obtains a waiver of preemption from the EPA. Since then, 14 other states have also adopted the California standards, prompting federal lawsuits from the auto industry in California, Vermont, Rhode Island, and New Mexico. The district courts that have considered the auto industries’ claims on the merits have found that state emissions standards would not be preempted by EPCA if the EPA grants a Clean Air Act waiver because, once these state emissions standards receive the waiver, EPCA treats these state standards as federal standards. The industry nonetheless claims that EPCA both expressly and impliedly preempts state auto emissions standards (thereby employing two distinct legal arguments for the courts to decide) because auto emissions standards have an impact on fuel economy standards.

The Bush Administration attempted to boost these claims by inserting pro-preemption language into the preamble of fuel economy regulations it proposed last spring under EPCA. It did the same thing with the preamble of federal drug labeling regulations, prompting the Supreme Court in its Wyeth decision to note that attempts by a federal agency to introduce “preemption by preamble” without undertaking public notice and comment were “inherently suspect.” By sharply criticizing the Bush Administration’s “preambulatory” approach to preemption, the Court assisted state efforts to defend their auto emissions standards. The Obama Administration, announced last week that it is removing all mention of preemption from Bush-era fuel economy regulations, which should only further assist the states’ legal defense.

In addition, the Supreme Court’s rulings in Altria and Wyeth reinforce the Court’s doctrine of “presumption against preemption,” which holds that when Congress has not stated its intent with respect to preemption, the Court generally “presumes” that states should be allowed to adopt regulations they deem necessary. The Court’s deference to this principle will hopefully make it easier for states to defend their auto emissions standards against industry preemption claims.

Fortunately, automakers have so far been unsuccessful in convincing federal judges that state auto emissions standards are preempted by EPCA, having lost at trial in both California and Vermont. However, both these cases are currently being appealed in the U.S. Court of Appeals for the Ninth and Second Circuits, respectively, with oral arguments heard in the Vermont appeal just last week. Meanwhile, auto dealers are pressing ahead with their lawsuits in Rhode Island and New Mexico.

It is important that the industry not succeed in convincing the appeals courts that states cannot introduce better-than-federal auto emissions standards. Such rulings would flagrantly conflict with Congress’s expressed intent to allow more stringent state auto emissions standards, just as they would conflict with the Framers’ vision of federalism. In this vision — which was upheld in Altria and Wyeth — states reserve the right, when Congress has not expressly taken it away, to go above and beyond federal law to protect their citizens’ safety and environment, thereby serving as the appropriate “laboratories” of our democracy.