Ryan Whaley Coldiron Shandy

Many eyes have been on the Environmental Protection Agency’s recent attempts – and the Congress’ recent failures – to regulate and legislate greenhouse gases; to see our explanation of the winding and complicated route the EPA has taken in order to regulate greenhouse gas emissions, please click on this link: http://www.ryanwhaley.com/epa-proposes-path-for-state-regulations-of-greenhouse-gases.

Meanwhile, some parties have taken climate change-based injury claims into their own hands.  These parties allege that large utility companies are causing a “public nuisance” by emitting greenhouse gases that either have or will harm them. 

These tort claims, premised on the harmful impacts of global warming, have the potential to change the expectations and behavior of some of the largest components of the American economy.  The cases also raise novel and controversial questions regarding the role of federal courts in American government and how to define the outer boundaries of whether a party has access to the federal courts.

On December 6, 2010, the United States Supreme Court agreed to consider one of these tort cases, American Electric Power Co. v. Connecticut. 

In this case, as in two other high-profile climate change-based tort cases called Comer v. Murphy Oil and Kivalina v. ExxonMobil, the federal district court judge who first considered whether the plaintiffs could actually sue dismissed the lawsuit on the grounds that the plaintiffs did not have standing in federal court.

But in American Electric Power Co. v. Connecticut, the federal court of appeals reversed the dismissal in a lengthy opinion elucidating the capability of federal courts to handle nuisance claims regardless whether Congress would or would not step in the way.

Now that the defendants have successfully appealed the reversal to the Supreme Court, the following issues will be addressed:

1. Can the plaintiffs (including states and private entities) ask a federal court to cap emissions from utilities due to their alleged contribution to global climate change? 
2. Does federal common law – i.e., law that is derived from court opinions as opposed to law enacted by Congress – include a cause of action for “public nuisance” that the plaintiffs can use as a means to seek relief?
3. Are the standards that a court would have to use to consider the plaintiffs’ claims so vague and unmanageable at this time that an initial policy decision should be made by Congress before the courts have the power to hear the claims?

In a twist, the Administration of President Obama used its power vis-à-vis the Tennessee Valley Authority to argue a related position: that the Supreme Court should send the case back down to the trial court to reconsider the standing issues in light of the EPA’s recent promulgation of rules regulating the emissions of greenhouse gases from mobile sources and many large stationary sources.  According to this logic, the lower court’s original dismissal – and the reversal by the appellate court – both occurred before the EPA had thoroughly regulated greenhouse gas emissions; now that the EPA has done so, the courts might decide that the federal regulations have “displaced” any common-law claim of “public nuisance” that might have previously existed.

In another twist, the order granting review states that “Justice Sotomayor [formerly on the appellate court that heard the case, but not a part of the original appellate opinion because she’d already been tabbed for nomination to the Supreme Court] took no part in the consideration or decision” to review the case.  If Justice Sotomayor also recuses herself from the Supreme Court review, then it is possible that the Court will end up in a 4-to-4 tie.  A tie would result in upholding the appellate opinion that the plaintiffs have standing.  Notably, there are certainly four justices, Justices Roberts, Scalia, Alito, and Thomas, who came out strongly in dissent against extending standing doctrine in the most recent global warming case, Massachusetts v. EPA.

In Massachusetts v. EPA, the Supreme Court controversially decided that states had standing to sue the EPA, and further decided that greenhouse gases are “air pollutants” as that term is used in the Clean Air Act.  Accordingly, the Supreme Court directed the EPA to determine whether greenhouse gas emissions from new motor vehicles cause or contribute to air pollution (and might have implicitly decided that Congress has indeed sufficiently legislated greenhouse gases to displace any federal common law action for “public nuisance”).

The American Electric Power Co. v. Connecticut case might be argued at the Supreme Court as early as next spring.