The U.S. Supreme Court announced earlier this month that it will indeed hear the challenge to a court of appeals decision allowing several states to pursue a public nuisance suit against various utilities for their greenhouse gas emissions. See American Electric Power Co. v. Connecticut, No. 10-174 (U.S. certiorari petition granted 12/6/10).

Readers may recall the issues from previous posts.  Two groups of plaintiffs, one consisting of eight states and New York City, and the other consisting of three land trusts, sued six electric power corporations that own and operate fossil-fuel-fired power plants, seeking abatement of defendants’ alleged ongoing contributions to the “public nuisance of global warming.” Plaintiffs claimed that global warming, to which the defendants allegedly contributed as large emitters of carbon dioxide, is causing, and will continue to cause serious harm affecting human health and natural resources. Plaintiffs brought these actions under the federal common law of nuisance or, in the alternative, state nuisance law, to force defendants to cap and then reduce their carbon dioxide emissions. The district court, 406 F. Supp. 2d 265, 268 (S.D.N.Y. 2005),  correctly held that plaintiffs’ claims presented a non-justiciable political question and dismissed the complaints. On appeal, plaintiffs argued that the political question doctrine does not bar adjudication of their claims; that they had standing to assert their claims; that they had properly stated claims under the federal common law of nuisance; and that their claims were not displaced by any federal statutes.

In a lengthy opinion, 582 F.3d 309 (2d Cir. 2009), the court of appeals held that the district court, had erred in dismissing the complaints on political question grounds; that all of plaintiffs had standing; that the federal common law of nuisance governs their claims; that plaintiffs had stated claims under the federal common law of nuisance; that their claims were not displaced. In a very minimalist interpretation of what is needed for standing, the Second Circuit distinguished multiple precedents of the Supreme Court which held that to have standing a plaintiff must allege an injury that is concrete, direct, real, and palpable — not abstract. Injury must be particularized, personal, individual, distinct, and differentiated — not generalized or undifferentiated.

AEP and three other power companies filed a petition for writ of certiorari Aug. 2, asking the Supreme Court to review the decision. The federal government (Acting Solicitor General Neal Katyal on behalf of the Tennessee Valley Authority, a government-owned company), urged the Supreme Court to overturn this decision that allowed Connecticut and several other states to move forward in their suit seeking greenhouse gas emissions reductions under a federal common law nuisance theory. A dozen states  joined the Administration, and a variety of amici, in urging the Supreme Court to review the decision by the Second Circuit.

One central issue is whether the EPA will be the primary regulator of greenhouse gas emissions or whether private parties will be permitted to go directly to court.  Should a single judge set emissions standards for regulated utilities across the country—or, as here, for just that subset of utilities that the plaintiffs have arbitrarily chosen to sue?  Judges in subsequent cases could set standards for other utilities or industries, or conflicting standards for these same utilities.
A second issue is whether controlling power plant emissions is a political question beyond the reach of the courts.

Note that Justice Sotomayor was a member of the Second Circuit when it heard oral arguments in Connecticut v. American Electric Power Co.  Thus it appears only eight justices will hear the case.
Justice Anthony Kennedy may turn out to be the pivotal vote in the case, based on his vote in Massachusetts v. EPA, 127 S. Ct. 1438 (2007).  The Supreme Court may not be eager to see a flood of common law litigation against greenhouse gas sources.