June 20, 2011
By: William F. Stewart and Danielle A. Sivert
This article is an interpretation of current law and is offered for informational purposes only. This material is not legal advice and should not be construed or used as a substitute for the advice of an attorney.
Earlier today, the United States Supreme Court issued its highly anticipated opinion in the landmark climate change nuisance case of Connecticut, et al. v. AEP. To the surprise of few, the Court held that the plaintiffs' federal common law nuisance claims could not proceed. Perhaps the most unanticipated aspect of the opinion, however, is that the Court implied that, at least under certain circumstances, state law nuisance claims might be viable (i.e., not preempted by the EPA's authority under the Clean Air Act).
In AEP, several states and environmental groups filed suit against power companies seeking an abatement of "the public nuisance of global warming." The plaintiffs alleged that the defendant utilities' combustion of fossil fuels had contributed to elevated levels of atmospheric CO2--which, in turn, had led to beach erosion, droughts and floods. After a New York federal district court dismissed the suit on the grounds that the regulation of greenhouse gas emissions was a political question best left for the elected branches of government, the Second Circuit Court of Appeals reversed. The appellate court's decision to let this case proceed, issued last September, sent shockwaves through the energy industry, opening the door for an untold number of climate change claims and lawsuits.
The U.S. Supreme Court reversed the Second Circuit holding that the Clean Air Act, and the EPA action authorized under that Act, "displaced any federal common law right to seek abatement of carbon-dioxide emissions." Justice Ginsburg writing for a unanimous high court concluded that the regulation of greenhouse gas emissions was best left to the EPA:
The appropriate amount of regulation in any particular greenhouse gas-producing sector cannot be prescribed in a vacuum: as with other questions of national or international policy, informed assessment of competing interests is required. Along with the environmental benefit potentially achievable, our Nation's energy needs and the possibility of economic disruption must weigh in the balance.
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The expert agency (EPA) is surely better equipped to do the job than individual district judges issuing ad hoc, case-by-case injunctions. Federal judges lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order.
The news was not all good for the energy defendants, however. While most of Justice Ginsberg's opinion was spent dismantling the states' federal common law arguments, the final four sentences of the opinion breathed some life back into climate nuisance claims:
In light of our holding that the Clean Air Act displaces federal common law, the availability vel non of a state lawsuit depends, inter alia, on the preemptive effect of the federal Act. [International Paper] at 489, 491, 497 (holding that the Clean Water Act does not preclude aggrieved individuals from bringing a "nuisance claim pursuant to the law of the source State"). None of the parties have briefed preemption or otherwise addressed the availability of a claim under state nuisance law. We therefore leave the matter open for consideration on remand.
Thus, while the AEP decision dealt a substantial setback to global warming nuisance claimants, it was not the "death knell" that the power industry had hoped for. To the contrary, the Court's curious final sentences suggest the possibility that aggrieved parties might pursue climate nuisance claims under the law of the particular states where the emissions occurred. If, and how, those state law claims might proceed are issues for another day.
