EPA putting the brakes on coal

Elections may not make that much of a difference…

In a ruling environmental activists called historic, the 2nd Circuit reinstated global warming lawsuits filed against electric utility companies under a common law nuisance theory.

The plaintiffs to the suits are eight states, including New York and California, and various environmental groups.

As the legal environmental blog Warming Law notes, previous cases brought under this theory were dismissed (or are still pending) and this opinion – which comes after a three year wait – presents environmental activists with a new avenue of litigation.

The plaintiffs claim the defendants are among the “five largest emitters of carbon dioxide in the United States” and that their emissions cause serious harm to health and natural resources.

A spokesperson for defendant American Electric Power Co., Pat Hemlepp, said that the decision is under internal review and that the company has not yet talked with outside counsel or the other defendants.

“In our view, litigation is not the best avenue to address climate concerns. It’s a public policy issue that is best addressed through legislation. Congress is taking that step now. The U.S. House of Representatives has passed climate legislation and the Senate is preparing similar action. AEP supports the legislation,” Hemlepp said via email.

The Southern District judge that previously dismissed the lawsuits ruled that such a nuisance action was non-justiciable under the political questions doctrine. The political question doctrine, as the Court notes it its opinion, is designed to prevent one branch of government from making a decision best left to another branch. In this case the issue is whether Congress and the President should set domestic and international environmental standards, such as regulation of greenhouse gas emissions, before a court rules whether or not those emissions constitute a public nuisance.

2nd Cir: Nowhere in their complaints do Plaintiffs ask the court to fashion a comprehensive and far-reaching solution to global climate change, a task that arguably falls within the purview of the political branches. Instead, they seek to limit emissions from six domestic coal-fired electricity plants on the ground that such emissions constitute a public nuisance that they allege has caused, is causing, and will continue to cause them injury.

A two judge panel issued the 139-page opinion on Monday; both judges were Republican appointees. Justice Sonya Sotomayor was on the panel that heard oral arguments but was confirmed to the Supreme Court before the case was decided.

The decision is extremely encouraging for the plaintiffs in another environmental suit, Native Village of Kivalina v. Exxon. That case, filed in the Northern District of California, is also based in part on common law nuisance claims. “The 2nd Circuit has now emphatically rejected the defendants’ main arguments for dismissing the Kivalina lawsuit,” Drew Hansen, a partner at Susman Godfrey and one of the attorneys representing the Kivalina plaintiffs, said in a phone call today. The judge in Kivalina is currently considering the defendants’ motions to dismiss.

Berkeley and UCLA’s law and policy blog, Legal Planet, provides analysis and expert opinion on the AEP holding.

http://www.businessinsider.com/2nd-circuit-reinstates-controversial-environmental-lawsuits-2009-9

The court said that even though the plaintiffs cannot show that their requested relief (emissions controls) would in any way amelioriate the alleged nuisance (global warming) or show they were specifically harmed by the alleged nuisance, they can sue power plants for their contribution to global warming.

It’s a fair question whether the judiciary would permit elected officials to legislate this out of existence.

Chris_Balsz on October 26, 2009 at 2:52 PM