As we await the Supreme Court's hearing of the appeal in State of Connecticut, et al. v. American Electric Power Co., et al. later this month (we'll refer to it as CT v. AEP here), it is worth considering some of the problems that even a successful appeal by the defendant utilities might bring upon themselves if the Court adopts the position advocated by the Obama Administration in its brief filed for the Tennessee Valley Authority, one of the defendants in the case.
First, a little background. In 2005, seven states (led by New York) and the City of New York sued the nation's five largest electric utility companies, measured by tons of CO2 emissions and taking into account the number of tons emitted per megawatt-hour of electricity produced, for their contribution to the public nuisance that would be consequent on inevitable climate change and which would harm the plaintiffs through reduction in snow pack (a major water source in California), destruction of agriculture and state forest, loss of sovereign land area through sea level rise, increased mortality of citizens, and other harms. Public nuisance is one of the oldest common law actions, recognized for hundreds of years in the English and colonial courts, and many times by US federal courts. It is, essentially, conduct which unreasonably interferes with or harms rights held by the public at large. Sovereign entities, such as states, can sue on behalf of their citizens, or for themselves, in public nuisance without proving some special or unique harm. Private entities need to show special harm. In the CT v. AEP case, the government plaintiffs were joined by a number of environmental organizations, primarily land trusts, in a companion lawsuit that has been essentially consolidated with the governments' suit.
Early in the case, the utility defendants made a motion to dismiss the case, which had been filed in the Federal District Court in Manhattan and assigned to District Court Judge Loretta Preska. The utilities argued among other things that the court did not have jurisdiction to hear the case because any federal common law of public nuisance had been displaced by Congressional and Presidential action on climate change, and would if allowed to proceed impede the President's alleged efforts to secure global action to reduce greenhouse gas emissions. Judge Preska conducted a long hearing on the merits of these legal arguments, during which she unexpectedly asked a series of questions on whether the plaintiffs' actions would be barred by the "political question" doctrine. To their credit, the attorneys for the utilities replied that dismissal of the case would be appropriate on that basis, although they had not argued for dismissal on this ground in their legal briefs. The defendants' position was not inappropriate: the political question doctrine was, and remains, a rarely-used limitation of the power of federal courts to adjudicate interstate disputes, until now mainly arising in the context of recognition by the federal government of foreign nations and the conduct of foreign policy, and issues where the Constitution clearly gives jurisdiction to Congress or the Executive branch of government (such as training and orders given to the National Guard).
Much to the dismay of the governmental plaintiffs and environmentalists around the world, Judge Preska issued a decision dismissing the cases on exactly this basis. Climate change, she reasoned, was an issue of such enormity and complexity that it was properly within the jurisdiction of the federal government, not the federal courts. The plaintiffs' public nuisance suit touched upon "so many areas of national and international policy" that it "revealed the transcendentally legislative nature of [the] litigation."
Unsurprisingly, the state plaintiffs appealed this decision to the Second Circuit Court of Appeals. At the time, now Supreme Court Justice Sonia Sotomayor was on the Second Circuit, and was the presiding judge of the three-judge panel. Argument was vigorous and the judges (most often, Judge Sotomayor) probed both sides with trenchant questions. Argument was heard on June 7, 2006. A decision was expected soon thereafter, since the case was one of great national interest. But months and then years passed, with no decision. Then, Judge Sotomayor was appointed to the Supreme Court and, not long after, the two judges remaining on the panel that had heard the appeal, Judges Hall and McLaughlin, issued on September 21, 2009 a unanimous decision overturning the District Court's dismissal of the lawsuits and remanding the case back for further hearing on the merits. That was a momentous decision, vindicating the States' position in all respects.
Again unsurprisingly, the defendants sought leave to appeal to the US Supreme Court, which was granted. Briefing is complete and the appeal will be heard on April 19th. Because she was a member of the court that heard the appeal, Justice Sotomayor will not take part in the Supreme Court's hearing, thus leaving eight judges to decide the case. In the event of a 4-4 split, the Second Circuit's ruling would be upheld, but the decision would have no particular weight outside the Circuit. By the way, New Jersey and Wisconsin, who were originally among the plaintiff states, pulled out when the appeal made its way to the Supreme Court, doubtless reflecting changes in their administrations after the 2010 elections.
Back to the Supreme Court hearing. Much to the dismay of the environmental community, the Obama Administration filed a brief on behalf of the TVA, a federal agency, in which the Solicitor General (the nation's top litigator) argued against the states' position that the defendants' GHG emissions constituted a public nuisance. But, does the environmental community have it wrong?
A few points to note. First, the TVA had argued in the District Court and the Circuit that it was not liable to be sued, because it was acting as a government agency carrying out a discretionary function in its power generation. This was a dubious proposition at best; the TVA generates and sells electricity in exactly the same way, and at the same rates, as other generators. Yes, the TVA is set up by federal law and has some special features of governance, but it acts just like any power generator. Why should it not be held accountable for its emissions on the same basis as the others? The Solicitor General did not advance these arguments in its submission to the Supreme Court. That shows that the Administration was taking a more nuanced position with respect to the States' claims.
Second, and most important, the Administration argued that USEPA was now engaged in a rule-making (you can view the notice here) on whether to issue source performance standards for GHG emissions from new and modified power plants. That rule-making was required under a settlement agreement with a number of States in State of New York, et al. v. EPA, which had challenged the standards previously set by EPA for power plants because they did not include GHG limitations. The Administration argued that the rule-making it had undertaken (which is due to be complete by May 2012) would essentially cover the field of GHG emissions by power plants and, therefore, would displace the federal common law of public nuisance that the plaintiffs were relying on in CT v. AEP.
This argument by the Administration is cogent and requires the careful attention of the plaintiffs in the case now before the Supreme Court. That is because the plaintiffs' arguments on the federal law of public nuisance were based in good measure on two decisions of the Supreme Court in related water pollution cases both named, Illinois v. City of Milwaukee, the first decided in 1972 and the second in1981. In both cases, the State of Illinois sued the City of Milwaukee, Wisconsin, under the law of public nuisance in federal court for discharging untreated sewage into Lake Michigan. Illinois effectively won the first case and lost the second. Between the two cases, Congress had enacted the Clean Water Act, a national regulatory scheme that, said the Supreme Court, displaced the necessity for federal common law.
Accordingly, the state plaintiffs in CT v. AEP, again much to the dismay of the environmental community, argued in their brief recently submitted to the Supreme Court that, in light of EPA's planned regulation of power plant GHG emissions, "the more prudent disposition of [the case] would be to dismiss the [grant of leave to appeal]... The case would then return to the district court, which would have a sound basis to stay further proceedings pending the outcome of EPA's rulemaking." You can read the State's brief here
It is not certain that the Supreme Court will take the plaintiffs up on their proposal, but it would seem to be a way to garner a majority opinion in the absence of Justice Sotomayor, and to avoid the more daunting task of revisiting the Court's crucial 2007 decision that GHG's constitute "air pollution" under the Clean Air Act that was established in the now-famous decision in Massachusetts v. EPA.
However, this way out presents the utility industry with a real conundrum. They and their allies are working tirelessly in Congress and the courts to limit, even obliterate, EPA's authority in the area of climate change. Let's say they are successful. Then the "displacement" argument disappears and the common law of public nuisance will come back with a vengeance. That, of course, is just what industry doesn't want: a patchwork of emission reduction standards set by states over whom industry may have little influence.
But let's say industry is unsuccessful, and EPA issues a set of regulations that does, in fact, achieve the sort of limitations on GHG emissions that was, and continues to be, sought by the plaintiffs. Then we will have a national program of greater breadth than the plaintiffs in Connecticut v. AEP could have reasonably expected.
Stay tuned for what should be a very interesting argument before the Court, and a decision of enormous import in the fight to save the planet from the disastrous effects of greenhouse gas emissions.
The author was an Assistant New York Attorney General in the Environmental Protection Bureau, and was liaison counsel to the Court and opposing counsel in CT v. AEP, up to the argument in the Second Circuit. Now working for the State in a different capacity, the views and opinions stated in this piece are entirely his own, and in no way reflect any position, view or opinion of the State of New York, the Attorney General, any other State or agency, or any other institution or entity.