All of the speeches, protests, accusations, and other activities at the United Nations climate change summit in Copenhagen are fading from the headlines. We may see some substantive changes in public policy occur in the next year because of the Copenhagen meetings. What is more certain, though, is that climate change is on the front burner in the legal profession, and we can expect the courts and the attorneys and law firms that represent the various stakeholders – corporations, public interest groups, and government – to have a major impact on climate change environmental policy in the United States in 2010.
One such significant legal ruling in the climate change arena was issued late in 2009 by the United States Court of Appeals for the Second Circuit. The Second Circuit held that the federal common law of nuisance could be pled in an action seeking to force fossil-fuel-fired power plants to abate their contribution to the public nuisance of global warming by reducing their carbon dioxide emissions.
When attorneys think of nuisance actions, if they think of them at all, they probably think of those nasty state court lawsuits. Neighbors suing each other over barking dogs; residents suing the local rendering plant for stinking up the neighborhood; a property owner claiming that the adjoining property was improperly draining rain water into the property owner’s basement; a city claiming that an abandoned building was a blight in a commercial area. How many of us even realize that there is a federal common law of nuisance cause of action?
Eight states - Connecticut, New York, California, Iowa, New Jersey, Rhode Island, Vermont, and Wisconsin - the City of New York, and three land trusts sued a group of electric utility corporations in the United States District Court for the Southern District of New York. The plaintiffs claimed that the fossil fuel power plants of the utilities emitted a significant amount of the carbon dioxide emissions in the country, and that these emissions constituted a public nuisance because of their impact on the current and future climate.
The district court dismissed the action, Conn. v. Am. Elec. Power Co., 406 F. Supp. 2d 265 (S.D.N.Y. 2005), on the basis that the complaints raised non-justiciable political questions that were beyond the limits of the court's jurisdiction. Citing to Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962), the district court held that “Because resolution of the issues presented here requires identification and balancing of economic, environmental, foreign policy, and national security interests, ‘an initial policy determination of a kind clearly for non-judicial discretion’ is required….Indeed, the questions presented here ‘uniquely demand single-voiced statement of the Government's views’….Thus, these actions present non-justiciable political questions that are consigned to the political branches, not the Judiciary.”
The Second Circuit reversed in Connecticut v. Am. Elec. Power Co., 582 F.3d 309 (2d Cir. N.Y. 2009), holding that the claims of the plaintiffs did not present non-justiciable political questions, that the plaintiffs had standing, and that they had adequately stated claims under the federal common law of nuisance. (The Second Circuit found that the issues before it were so complex that it felt the need to insert a table of contents at the beginning of the decision. In addition, Justice Sotomayor was originally a member of the panel, but did not participate in the opinion because of her elevation to the Supreme Court.)
The Second Circuit appears to be encouraging litigation such as this in its finding that Baker did not preclude the nuisance claims from being litigated. “We find no textual commitment in the Constitution that grants the Executive or Legislative branches responsibility to resolve issues concerning carbon dioxide emissions or other forms of alleged nuisance…. We do not agree that there are no judicially discoverable and manageable standards for resolving this case. Well-settled principles of tort and public nuisance law provide appropriate guidance to the district court in assessing Plaintiffs' claims and the federal courts are competent to deal with these issues…. Allowing this litigation where there is a lack of a unified policy does not demonstrate any lack of respect for the political branches, contravene a relevant political decision already made, or result in multifarious pronouncements that would embarrass the nation…. Certainly, the political implications of any decision involving possible limits on carbon emissions are important in the context of global warming, but not every case with political overtones is non-justiciable. It is error to equate a political question with a political case.”
Not only did the Second Circuit find that the litigation did not involve a political question, it also proceeded to deal with the important issue that was not decided by the district court, whether the plaintiffs failed to state a claim under the federal common law of nuisance. The Second Circuit had to determine first if the state plaintiffs stated a cause of action, and secondly if the non-state plaintiffs, the city and the private plaintiffs, stated a cause of action.
The Second Circuit stated that the principles of a public nuisance as set forth in Restatement (Second) of Torts § 821B, “A public nuisance is an unreasonable interference with a right common to the general public”, provided the framework for the federal common law of nuisance. The state plaintiffs alleged that “Defendants' emissions, by contributing to global warming, constitute a substantial and unreasonable interference with public rights in the plaintiffs' jurisdictions, including, inter alia, the right to public comfort and safety, the right to protection of vital natural resources and public property, and the right to use, enjoy, and preserve the aesthetic and ecological values of the natural world.” The Second Circuit held that “These grievances suffice to allege an ‘unreasonable interference’ with ‘public rights’ within the meaning of § 821B(2)(a).” Thus, emissions “contributing to global warming” can constitute a public nuisance under federal common law.
The defendants argued in the alternative that only the States could bring federal common law of nuisance claims. The Second Circuit rejected that assertion: “But in other areas of the federal common law – areas involving the same kind of overriding federal interest in the need for a uniform rule of decision or presenting a controversy that touches basic interests of federalism – the Court has focused on the claim, not on the party presenting the claim, and has held that private plaintiffs may bring actions and may seek remedies under federal common law….It would make no sense to carve out the federal common law of nuisance from other areas of the federal common law as the one area that permits states, and only states, to bring actions.”
Of course, § 821B states that a public nuisance must interfere with public rights. The Second Circuit, in finding that the private plaintiffs could maintain their action, drew a distinction between the private plaintiffs and regular private land owners. The private plaintiffs were land trusts “with legally recognized missions to preserve ecologically sensitive land areas” and had opened their land to public use. Thus, the private plaintiffs in this litigation could suffer harms that were different from the harms that might be suffered by an individual land owner, who would probably be precluded from maintaining a public nuisance action.
It is always dangerous to read too much into an appellate decision, especially a decision that is only ruling on a motion to dismiss for failure to state a claim. At the same time, though, the exhaustive analysis by the Second Circuit would seem to indicate that the Second Circuit is very willing to find that fossil fuel greenhouse gas emissions lead to global warming and thus are a public nuisance. The Second Circuit ended its opinion with this conclusion that sounds like an invitation to plaintiffs and a warning to greenhouse gas emitting defendants: “It may happen that new federal laws and new federal regulations may in time pre-empt the field of federal common law of nuisance. But until that comes to pass, federal courts will be empowered to appraise the equities of the suits alleging creation of a public nuisance by greenhouse gases.”
(As a final note, the Second Circuit’s opinion was cited three weeks ago in an amicus brief filed in the Supreme Court by the Pacific Legal Foundation and the Cato Institute in the appeal of Jeffrey K. Skilling, Skilling v. United States, 2009 U.S. S. Ct. Briefs LEXIS 1588 (U.S. Dec. 16, 2009). Mr. Skilling, of course, was convicted of conspiracy, securities fraud, making false representations to auditors, and insider trading by the United States District Court for the Southern District of Texas, for his role as the CEO of Enron Corporation, an energy company where greenhouse gas emissions clearly took a back seat to financial irregularities.)