Climate change and greenhouse gas emissions: signs of a new judicial activism?

Climate change and greenhouse gas emissions: signs of a new judicial activism?

Interviewed in October 2009 Connie Hedegard, Danish Minister for Climate and Energy who will act as President of December’s climate change summit said: ‘If the whole world comes to Copenhagen and leaves without making the needed political agreement, then I think it’s a failure that is not just about climate. Then it’s the whole global democratic system not being able to deliver results in one of the defining challenges of our century. And that is and should not be a possibility. It’s not an option’.
More recently, world leaders have been working hard to manage expectations, acknowledging that instead of a detailed agreement covering greenhouse gas reduction targets and financial mechanisms, Copenhagen may produce only a high level framework accord to be followed in 2010 by further negotiation.
Even if Copenhagen, or some future summit, were to produce a detailed treaty, its terms would have to be ratified and then implemented through the national laws and regulation of signatory states. The process would not be swift.
What happens in the meantime?  In jurisdictions where it applies, might common law step in to fill the void and provide mechanisms to control emissions?
Legal commentators on both sides of the Atlantic are watching closely for signs of greater judicial activism on climate change, with existing common law remedies being applied to situations where legislators and regulatory bodies have yet to act. In September 2009 the US Court of Appeals for the Second Circuit signalled a move in that direction, potentially opening the way for claims in tort for the abatement of greenhouse gas emissions as a public nuisance under Federal or State laws. 
 
 
In Connecticut v. American Electric Power, No. 05-5104-cv (2d. Cir. Sept. 21, 2009) the appeal panel reversed a ruling under which public nuisance claims were held to be ‘non justiciable’ because they concerned political questions so that a court ruling would breach separation of powers by injecting the judiciary into matters reserved for the executive and legislative branches of government. The appeal panel held that while the claims had political implications, they remained justiciable in the federal courts. Congress has so far enacted no legislation and the US Environmental Protection Agency (EPA) has issued no regulations that preempt the field. Consequently, the claims were not displaced by other Federal law or regulation.
 
 
The group actions were launched in 2004. They claimed that fossil fuelled power plants were responsible for approximately 10% of man-made carbon dioxide emissions, were contributing to global warming and so constituted a public nuisance. 
Drawing on the Supreme Court’s 1962 decision in Baker v. Carr, the Second Circuit ruled that there was no bar, based on separation of powers, to the court ruling on the matter. The appeal Panel held: 
  • the defendants presented no argument showing that the Constitution commits carbon dioxide regulation to Congress.
  • the actions do not impinge on the President’s foreign policy authority since the plaintiffs are proceeding solely against domestic entities and are not looking for a global solution.
  • manageable standards for resolving the claims are available because federal courts regularly resolve complex nuisance claims.
  • common law could provide a remedy when Congress had failed to act, and judicial resolution would not interfere with an existing political decision. 
In particular, the appeal panel held that regulation of carbon dioxide under the Clean Air Act and other federal statutes has not advanced sufficiently to displace the federal common law of nuisance. Until it does, remedies for climate change may be found through judicial process because greenhouse gas emissions constitute a nuisance, just like any other release of a pollutant.
The ruling in American Electric Power was reached by a panel of two judges. The third member of the panel, Judge Sonia Sotomayor, did not participate in the decision after her nomination to the US Supreme Court. However, at an earlier stage in the proceedings the newest Justice of the Supreme Court commented: ‘I have absolutely no idea about the science of global warming. . . .But if the scientists are right, we have relegated ourselves to killing the world in the foreseeable future, not in centuries to come, but in a very close timeframe. At some point, someone is going to have to say stop. I don’t know who is going to do it.’ Current indications are that if legislators do not step in, the courts may consider themselves bound to do so.
 
Access the Emerging Issues Analysis discussing Connecticut v. American Electric Power.  Written by Steven Jones, “Marten Law Group: Second Circuit Allows Federal Nuisance Claims for Global Warming to Proceed” is available on lexis.com.
 
 

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