In American Electric Power v Connecticut, six states and one city (Connecticut, Iowa, California, New York, Rhode Island, Vermont and New York City) are arguing that common public nuisance laws give them the power to sue power companies to reduce emissions that cause global warming.
The five utility companies – American Electric Power Co, Southern Co. Xcel Energy Inc, Cinergy Corp and the Tennessee Valley Authority (TVA) – say that climate policy has no place in the courts and should be decided by Congress. They’re also warning that should the case be allowed to proceed, electricity rates would skyrocket.
Read more: http://dailycaller.com/2011/04/19/supreme-court-to-hear-major-climate-change-case/#ixzz1JyAKJnWh
Here's what the case looked like at the Court of Appeals level:
United States Court of Appeals,
Second Circuit.
State of CONNECTICUT, State of New York, People of the State of California ex rel. Attorney General Bill Lockyer, State of Iowa, State of New Jersey, State of Rhode Island, State of Vermont, State of Wisconsin, and City of New York, Plaintiffs-Appellants,
v.
AMERICAN ELECTRIC POWER COMPANY INC., American Electric Power Service Corporation, Southern Company, Tennessee Valley Authority, Xcel Energy, Inc., and Cinergy Corporation, Defendants-Appellees.
Open Space Institute, Inc., Open Space Conservancy, Inc., Audubon Society of New Hampshire, Plaintiffs-Appellants,
v.
American Electric Power Company Inc., American Electric Power Service Corporation, Southern Company, Tennessee Valley Authority, Xcel Energy, Inc., and Cinergy Corporation, Defendants-Appellees.
Docket Nos. 05-5104-cv, 05-5119-cv.
Argued: June 7, 2006.
Decided: Sept. 21, 2009.
Background: Eight states, a city, and three land trusts separately sued the same six electric power corporations that owned and operated fossil-fuel-fired power plants in twenty states, seeking abatement of defendants' ongoing contributions to the public nuisance of global warming. The United States District Court for the Southern District of New York, Loretta A. Preska, Chief Judge, 406 F.Supp.2d 265, dismissed plaintiffs' federal common law of nuisance claims as non-justiciable under the political question doctrine, and plaintiffs appealed.
Holdings: The Court of Appeals, Peter W. Hall, Circuit Judge, held that:
(1) actions did not present non-justiciable political questions;
(2) parties had standing;
(3) municipal and private plaintiffs were not precluded from bringing claims sounding in the federal common law of nuisance;
(4) plaintiffs stated a claim under federal common law of public nuisance; and
(5) federal legislation did not displace the federal common law nuisance claims.
Vacated and remanded.
West Headnotes
[1] Headnote Citing References KeyCite Citing References for this Headnote
Key Number Symbol92 Constitutional Law
Key Number Symbol92XX Separation of Powers
Key Number Symbol92XX(C) Judicial Powers and Functions
Key Number Symbol92XX(C)5 Political Questions
Key Number Symbol92k2580 k. In general. Most Cited Cases
Political question doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch.
[2] Headnote Citing References KeyCite Citing References for this Headnote
Key Number Symbol92 Constitutional Law
Key Number Symbol92XX Separation of Powers
Key Number Symbol92XX(C) Judicial Powers and Functions
Key Number Symbol92XX(C)5 Political Questions
Key Number Symbol92k2580 k. In general. Most Cited Cases
Determination of whether a case involves a nonjusticiable political question requires consideration of whether there is: (1) a textually demonstrable constitutional commitment of the issue to a coordinate political department, (2) a lack of judicially discoverable and manageable standards for resolving it, (3) the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion, or (4) the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government, (5) an unusual need for unquestioning adherence to a political decision already made, or (6) the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
[3] Headnote Citing References KeyCite Citing References for this Headnote
Key Number Symbol92 Constitutional Law
Key Number Symbol92XX Separation of Powers
Key Number Symbol92XX(C) Judicial Powers and Functions
Key Number Symbol92XX(C)5 Political Questions
Key Number Symbol92k2580 k. In general. Most Cited Cases
Actions brought by governmental and private entities against owners of electric power plants seeking abatement of owners' ongoing contributions to the public nuisance of global warming did not present non-justiciable political questions; well-settled principles of tort and public nuisance law provided appropriate guidance to the district court in assessing plaintiffs' claims and the federal courts were competent to deal with those issues, there was no impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion, and judicial resolution of the questions would not contradict prior decisions taken by a political branch.
[4] Headnote Citing References KeyCite Citing References for this Headnote
Key Number Symbol170A Federal Civil Procedure
Key Number Symbol170AII Parties
Key Number Symbol170AII(A) In General
Key Number Symbol170Ak103.1 Standing
Key Number Symbol170Ak103.5 k. Pleading. Most Cited Cases
At the pleading stage, allegation of a credible risk may be sufficient, without further factual confirmation or quantification of the precise risk, to satisfy injury-in-fact requirement for Article III standing. U.S.C.A. Const. Art. 3, § 2, cl. 1.
[5] Headnote Citing References KeyCite Citing References for this Headnote
Key Number Symbol360 States
Key Number Symbol360VI Actions
Key Number Symbol360k192 k. Rights of action by state or state officers. Most Cited Cases
State standing is not monolithic and depends on the role a state takes when it litigates in a particular case. U.S.C.A. Const. Art. 3, § 2, cl. 1.
[6] Headnote Citing References KeyCite Citing References for this Headnote
Key Number Symbol279 Nuisance
Key Number Symbol279II Public Nuisances
Key Number Symbol279II(C) Abatement and Injunction
Key Number Symbol279k82 k. Persons by or against whom proceedings may be brought. Most Cited Cases
States adequately alleged the requirements for parens patriae standing to bring suit against owners of power plants for abatement of owners' ongoing contributions to the public nuisance of global warming; states' interest in safeguarding the public health and their resources was an interest apart from any interest held by individual private entities. U.S.C.A. Const. Art. 3, § 2, cl. 1.
[7] Headnote Citing References KeyCite Citing References for this Headnote
Key Number Symbol360 States
Key Number Symbol360VI Actions
Key Number Symbol360k190 k. Capacity of state to sue in general. Most Cited Cases
States suing as parens patriae are not required to meet the test for organizational standing. U.S.C.A. Const. Art. 3, § 2, cl. 1.
[8] Headnote Citing References KeyCite Citing References for this Headnote
Key Number Symbol170A Federal Civil Procedure
Key Number Symbol170AII Parties
Key Number Symbol170AII(A) In General
Key Number Symbol170Ak103.1 Standing
Key Number Symbol170Ak103.2 k. In general; injury or interest. Most Cited Cases
Key Number Symbol170B Federal Courts Headnote Citing References KeyCite Citing References for this Headnote
Key Number Symbol170BI Jurisdiction and Powers in General
Key Number Symbol170BI(A) In General
Key Number Symbol170Bk12 Case or Controversy Requirement
Key Number Symbol170Bk12.1 k. In general. Most Cited Cases
Presence of one party with standing is sufficient to satisfy Article III's case-or-controversy requirement. U.S.C.A. Const. Art. 3, § 2, cl. 1.
[9] Headnote Citing References KeyCite Citing References for this Headnote
Key Number Symbol279 Nuisance
Key Number Symbol279II Public Nuisances
Key Number Symbol279II(C) Abatement and Injunction
Key Number Symbol279k82 k. Persons by or against whom proceedings may be brought. Most Cited Cases
Destruction of California property wrought by the flooding associated with the earlier-melting snowpack qualified as a current injury-in-fact for purposes of establishing states' standing, in their proprietary capacity as property owners, to sue owners of power plants for abatement of owners' ongoing contributions to the public nuisance of global warming. U.S.C.A. Const. Art. 3, § 2, cl. 1.
[10] Headnote Citing References KeyCite Citing References for this Headnote
Key Number Symbol279 Nuisance
Key Number Symbol279II Public Nuisances
Key Number Symbol279II(C) Abatement and Injunction
Key Number Symbol279k82 k. Persons by or against whom proceedings may be brought. Most Cited Cases
States, city, and land trusts, which sued in their proprietary capacity as property owners, alleged future injury sufficient to constitute injury-in-fact for purposes of establishing standing to sue owners of power plants for abatement of owners' ongoing contributions to the public nuisance of global warming since the injuries that they alleged were certain to occur because of the consequences, based on the laws of physics and chemistry, of the documented increased carbon dioxide in the atmosphere; states with ocean coastlines charged that a rise in sea level induced by global warming would cause more frequent and severe flooding, harm coastal infrastructure, and cause hundreds of billions of dollars of damage, states bordering the Great Lakes alleged substantial injury due to lowered water levels of the Great Lakes, which would disrupt hydropower production, and land trusts alleged that global warming would diminish or destroy the particular ecological and aesthetic values that caused them to acquire, and caused them to maintain, the properties they held in trust, and would undermine their objectives by interfering with their efforts to preserve ecologically significant and sensitive land for scientific and educational purposes, and for human use and enjoyment. U.S.C.A. Const. Art. 3, § 2, cl. 1.
[11] Headnote Citing References KeyCite Citing References for this Headnote
Key Number Symbol279 Nuisance
Key Number Symbol279II Public Nuisances
Key Number Symbol279II(C) Abatement and Injunction
Key Number Symbol279k82 k. Persons by or against whom proceedings may be brought. Most Cited Cases
For purposes of establishing standing, in their proprietary capacity as property owners, to sue owners of power plants for abatement of owners' ongoing contributions to the public nuisance of global warming, states, city, and land trusts sufficiently alleged that their current and future injuries were “fairly traceable” to owners' conduct; plaintiffs alleged that owners were the five largest emitters of carbon dioxide in the United States, and that their emissions directly and proximately contributed to their injuries and threatened injuries. U.S.C.A. Const. Art. 3, § 2, cl. 1.
[12] Headnote Citing References KeyCite Citing References for this Headnote
Key Number Symbol170A Federal Civil Procedure
Key Number Symbol170AII Parties
Key Number Symbol170AII(A) In General
Key Number Symbol170Ak103.1 Standing
Key Number Symbol170Ak103.3 k. Causation; redressability. Most Cited Cases
A party need only demonstrate that it would receive “at least some” relief to establish redressability requirement for Article III standing. U.S.C.A. Const. Art. 3, § 2, cl. 1.
[13] Headnote Citing References KeyCite Citing References for this Headnote
Key Number Symbol279 Nuisance
Key Number Symbol279II Public Nuisances
Key Number Symbol279II(C) Abatement and Injunction
Key Number Symbol279k82 k. Persons by or against whom proceedings may be brought. Most Cited Cases
Fact that global warming would continue despite a reduction in power plant owners' carbon dioxide emissions did not preclude a determination that a favorable decision would satisfy redressability requirement for establishing property owners' standing to sue owners of power plants for abatement of owners' ongoing contributions to the public nuisance of global warming; court could provide some measure of relief, and did not have to prevent all harm from a variety of other sources. U.S.C.A. Const. Art. 3, § 2, cl. 1.
[14] Headnote Citing References KeyCite Citing References for this Headnote
Key Number Symbol279 Nuisance
Key Number Symbol279II Public Nuisances
Key Number Symbol279II(A) Nature of Injury, and Liability Therefor
Key Number Symbol279k59 k. Nature and elements of public nuisance in general. Most Cited Cases
Under federal common law, public nuisance is an unreasonable interference with a right common to the general public. Restatement (Second) of Torts § 821B.
[15] Headnote Citing References KeyCite Citing References for this Headnote
Key Number Symbol279 Nuisance
Key Number Symbol279II Public Nuisances
Key Number Symbol279II(A) Nature of Injury, and Liability Therefor
Key Number Symbol279k61 k. Matters constituting public nuisances in general. Most Cited Cases
States sufficiently alleged public nuisance claims under federal common law of nuisance against owners and operator of fossil-fuel-fired power plants where they alleged that owners' carbon dioxide emissions, by contributing to global warming, constituted a substantial and unreasonable interference with public rights in their jurisdictions, including 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 nuisance was not required to be “poisonous” or “noxious” in order to be actionable, nor was the harm required to be localized or immediate. Restatement (Second) of Torts § 821B.
[16] Headnote Citing References KeyCite Citing References for this Headnote
Key Number Symbol279 Nuisance
Key Number Symbol279II Public Nuisances
Key Number Symbol279II(C) Abatement and Injunction
Key Number Symbol279k82 k. Persons by or against whom proceedings may be brought. Most Cited Cases
Municipal and private plaintiffs were not precluded from bringing claims sounding in the federal common law of nuisance. Restatement (Second) of Torts § 821C.
[17] Headnote Citing References KeyCite Citing References for this Headnote
Key Number Symbol279 Nuisance
Key Number Symbol279II Public Nuisances
Key Number Symbol279II(A) Nature of Injury, and Liability Therefor
Key Number Symbol279k62 k. Public annoyance, injury, or danger. Most Cited Cases
City sufficiently alleged interference with rights common to the general public, and therefore it could maintain an action for public nuisance against owners and operators of fossil-fuel-fired power plants based on their contributions to global warming; city alleged that unrestrained emissions of greenhouse gases would increase the temperature in the city, which would in turn increase heat-related deaths, damage the coastal infrastructure, and wreak havoc in its residents' daily lives. Restatement (Second) of Torts § 821C.
[18] Headnote Citing References KeyCite Citing References for this Headnote
Key Number Symbol279 Nuisance
Key Number Symbol279II Public Nuisances
Key Number Symbol279II(B) Rights and Remedies of Private Persons
Key Number Symbol279k72 k. Special annoyance, injury, or danger to individuals. Most Cited Cases
Private land trusts, whose missions were to preserve ecologically sensitive land areas, sufficiently alleged that they had suffered a harm different from that suffered by other members of the public, and that they suffered that harm when exercising a public right with which power plant owners interfered, and therefore they could maintain an action under federal common law of public nuisance against owners of fossil-fuel-fired power plants based on their contributions to global warming; trusts asserted a public right to a climate that would not drastically change as a result of greenhouse gas “pollution,” thereby devastating the ecology and the human population. Restatement (Second) of Torts § 821C.
[19] Headnote Citing References KeyCite Citing References for this Headnote
Key Number Symbol279 Nuisance
Key Number Symbol279II Public Nuisances
Key Number Symbol279II(A) Nature of Injury, and Liability Therefor
Key Number Symbol279k62 k. Public annoyance, injury, or danger. Most Cited Cases
City and private land trusts sufficiently alleged an unreasonable interference with a right common to the general public, and therefore stated a claim under federal common law of public nuisance against owners of fossil-fuel-fired power plants based on their contributions to global warming; plaintiffs alleged that owners' carbon dioxide emissions would cause a significant interference with the public right to be free from widespread environmental harm caused by the effects of global warming. Restatement (Second) of Torts § 821B.
[20] Headnote Citing References KeyCite Citing References for this Headnote
Key Number Symbol170B Federal Courts
Key Number Symbol170BVI State Laws as Rules of Decision
Key Number Symbol170BVI(A) In General
Key Number Symbol170Bk374 k. Matters of general jurisprudence; federal common law. Most Cited Cases
Because federal common law is subject to the paramount authority of Congress, federal courts may resort to it only in absence of an applicable Act of Congress.
[21] Headnote Citing References KeyCite Citing References for this Headnote
Key Number Symbol361 Statutes
Key Number Symbol361VI Construction and Operation
Key Number Symbol361VI(A) General Rules of Construction
Key Number Symbol361k222 k. Construction with reference to common or civil law. Most Cited Cases
In determining whether a federal statute has displaced a federal common law cause of action, a court must consider whether the federal statute speaks directly to the question otherwise answered by federal common law; a statute need not address every issue of an area of law, but when it does speak directly to a question, the courts are not free to supplement Congress's answer so thoroughly that the statute becomes meaningless.
[22] Headnote Citing References KeyCite Citing References for this Headnote
Key Number Symbol279 Nuisance
Key Number Symbol279II Public Nuisances
Key Number Symbol279II(A) Nature of Injury, and Liability Therefor
Key Number Symbol279k59 k. Nature and elements of public nuisance in general. Most Cited Cases
Key Number Symbol360 States Headnote Citing References KeyCite Citing References for this Headnote
Key Number Symbol360I Political Status and Relations
Key Number Symbol360I(B) Federal Supremacy; Preemption
Key Number Symbol360k18.15 k. Particular cases, preemption or supersession. Most Cited Cases
Clean Air Act (CAA) and five other statutes which primarily required scientific research, technology development, and reporting of emissions levels by electric utilities did not displace federal common law nuisance claims against owners and operators of fossil-fuel-fired power plants based on their contributions to global warming; statutes did not regulate greenhouse gas emissions or regulate such emissions from stationary sources. Clean Air Act, §§ 108, 302(g), 42 U.S.C.A. §§ 7408, 7602(g); National Climate Program Act, §§ 2, 3, 15 U.S.C.A §§ 2901, 2902; Global Change Research Act of 1990, §§ 2, 101-108, 15 U.S.C.A. §§ 2921, 2931-2938; Energy Policy Act of 1992, §§ 1601, 1610, 42 U.S.C.A. §§ 13381, 13389.
[23] Headnote Citing References KeyCite Citing References for this Headnote
Key Number Symbol279 Nuisance
Key Number Symbol279II Public Nuisances
Key Number Symbol279II(A) Nature of Injury, and Liability Therefor
Key Number Symbol279k59 k. Nature and elements of public nuisance in general. Most Cited Cases
Key Number Symbol360 States Headnote Citing References KeyCite Citing References for this Headnote
Key Number Symbol360I Political Status and Relations
Key Number Symbol360I(B) Federal Supremacy; Preemption
Key Number Symbol360k18.15 k. Particular cases, preemption or supersession. Most Cited Cases
President's conduct of foreign affairs did not displace federal common law nuisance claims against owners and operators of fossil-fuel-fired power plants based on their contributions to global warming.
[24] Headnote Citing References KeyCite Citing References for this Headnote
Key Number Symbol92 Constitutional Law
Key Number Symbol92XX Separation of Powers
Key Number Symbol92XX(C) Judicial Powers and Functions
Key Number Symbol92XX(C)5 Political Questions
Key Number Symbol92k2580 k. In general. Most Cited Cases
Because Tennessee Valley Authority (TVA) operated as the functional equivalent of a private corporation, public nuisance claims based on its emissions of greenhouse gases in connection with its electricity generating activities did not present non-justiciable political questions. Tennessee Valley Authority Act of 1933, § 4(b), 16 U.S.C.A. § 831c(b).
[25] Headnote Citing References KeyCite Citing References for this Headnote
Key Number Symbol393 United States
Key Number Symbol393V Liabilities
Key Number Symbol393k78 Torts
Key Number Symbol393k78(12) k. Execution of statutes or regulations; discretionary acts or functions. Most Cited Cases
Discretionary function exception insulates the government from liability if the action challenged involves the permissible exercise of policy judgment.
[26] Headnote Citing References KeyCite Citing References for this Headnote
Key Number Symbol393 United States
Key Number Symbol393V Liabilities
Key Number Symbol393k78 Torts
Key Number Symbol393k78(12) k. Execution of statutes or regulations; discretionary acts or functions. Most Cited Cases
Discretionary function exception did not insulate Tennessee Valley Authority (TVA) from liability for public nuisance based on its emissions of greenhouse gases in connection with its electricity generating activities.
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