The Supreme Court ended months of eager waiting this week by accepting for review the controversial Second Circuit Court of Appeals' climate change opinion in Connecticut v. American Electric Power. This decision means that the Court may squarely consider the viability of federal nuisance claims premised on damages allegedly caused by the effects of greenhouse gas emissions.
Justice Sotomayor, a former Second Circuit judge, took no part in the decision on the petition for certiorari. Her absence from consideration of this case leaves open the possibility of a tie, which would result in affirmance of the Second Circuit's decision to allow the suit to proceed through discovery.
Back in September 2009, the Second Circuit in American Electric Power resurrected previously dismissed lawsuits brought by New York City, several states, and private land trusts against electric utilities that allegedly emit 10% of America's man-made greenhouse gases. Premising their federal common law suit on alleged harms resulting from climate change, the plaintiffs seek an injunction forcing the utilities to cap and then reduce their greenhouse gas emissions. In March 2010, the court rejected requests for rehearing by the original panel and for en banc review by the entire panel of circuit judges.
Impacts On Other Climate Change Suits
Another major climate change suit pending within the Fifth Circuit, Comer v. Murphy Oil Co., is currently awaiting Supreme Court action. In October 2009, the Fifth Circuit reversed the district court's dismissal of claims by a putative class of gulf coast residents and property owners against energy, fossil fuel, and chemical companies for Hurricane Katrina damage. Instead of an injunction, the Comer plaintiffs seek compensatory and punitive damages, contending that the defendants' combined greenhouse gas emissions increased global surface air and water temperatures, thus raising sea levels, thus compounding the storm, thus destroying plaintiffs' property.
The original three-judge panel of the Fifth Circuit in Comer agreed with much of the Second Circuit's American Electric Power decision. In a bizarre procedural twist, however, the Fifth Circuit later vacated the panel's decision in order to hear the case en banc, and then upon determining that it lacked a quorum of active judges, dismissed the entire appeal and reinstated the district court's dismissal of the case. Too many Fifth Circuit judges had recused themselves from hearing the matter. The Comer plaintiffs have since petitioned the Supreme Court for a writ of mandamus ordering the Fifth Circuit to rule on the appeal. The respondents' oppositions to the petition were filed just last week.
Meanwhile on the west coast, a third greenhouse gas nuisance suit, Native Village of Kivalina v. Exxonmobil Corp., has been fully briefed to the Court of Appeals for the Ninth Circuit. The court has yet to determine whether or when oral argument will take place. In Kivalina, the Northern District of California in September 2009 expressly disagreed with the Second Circuit's reasoning in American Electric Power, and dismissed federal nuisance claims for costs of future relocation that plaintiffs assert will be necessitated by global warming. "It is illogical to conclude," the district court held, "that the mere contribution of greenhouse gases into the atmosphere is sufficient to establish that a plaintiff's injury is fairly traceable to a defendant's conduct." The plaintiff Alaskan native village is asking the Ninth Circuit to overturn that dismissal and reinstate the case, just as the Second Circuit did (and the Fifth Circuit panel attempted to do) for other climate change plaintiffs. However, now that the Supreme Court has accepted certiorari in American Electric Power, it is possible that the Ninth Circuit will wait for the Supreme Court's opinion before deciding Kivalina.
What Does it all Mean?
That the Supreme Court accepted certiorari here likely indicates that there is at least some dissatisfaction on the Court with the Second Circuit's holding. The Court could reverse on a number of grounds, including whether a federal nuisance claim exists for this type of tort, whether the plaintiffs have standing, whether the Clean Air Act displaces the plaintiffs' claims, or whether this issue constitutes a question more appropriately addressed by the political branches rather than the court system.
Exactly how the Court rules may depend on the number of votes that the competing elements of the Court can each muster on these respective issues. This, in turn, could dictate the precedential impact that the Court's holding will have – not only on the future of climate change litigation, but also on federal environmental nuisance law in general and even on standing for environmental claims. Particularly key may be the vote of Justice Kennedy, the deciding vote in Massachusetts v. EPA, the decision that cleared the way for the EPA to begin direct regulation of greenhouse gas emissions in 2011.
Likewise, a decision by the Court to reinstate the Comer appeal in the Fifth Circuit could affect state tort claims relating to climate change. At a minimum, the Court's decision in American Electric Power will be one of the most highly anticipated of the upcoming term.
For more detail on the underlying opinions and their importance, see Who's to Blame for Climate Change: Will the Supreme Court Review?
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