Today, a federal court issued a 139-page opinion in Connecticut v. American Electric Power (AEP) that may just light a fire under the Senate to enact real climate change legislation to regulate greenhouse gas emissions. During the Bush years, states fed up with no action on climate change filed a lawsuit against power companies based on a theory that carbon dioxide emissions threatened the health of people and natural resources. For years, the power companies have lobbied hard to prevent Congress from regulating GHG, and today that strategy backfired. While AEP whined that Congress and not the courts should "address climate issues," one reason that the fossil fuel polluters lost is because there is no regulation of GHG that cause climate change.
Back during the Bush years, 8 states (California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont and Wisconsin), New York City and 3 nonprofit land trusts filed a lawsuit in 2004 against 5 of the largest carbon dioxide emitters in the U.S. (American Electric Power Co. Inc., Cinergy Co., Southern Co. Inc. of Georgia, Xcel Energy Inc. of Minnesota, and the federal Tennessee Valley Authority). At the time, the States were fed up with the Bush administration doing nothing to combat climate change. These power companies operate fossil-fuel plants in 20 states.
In Connecticut v. American Electric Power (AEP), the states claimed that the carbon emissions by the electric power producers constituted a common law public nuisance that mandated that emissions be reduced. The states argued that the aggregate total of 650 million tons annually of carbon dioxide emissions not only contributed to climate change, but threatened the health of people and threatened their natural resources. Specifically, the states seek a court order that the power companies reduce their carbon dioxide emissions by 3% annually for 10 years.
A federal judge dismissed the lawsuit in 2005 on the grounds that the global warming was a political question for Congress or the President rather than the courts. The court reasoned that if the states won the lawsuit, then the "courts would have to figure out how to cap emissions, set reduction goals and a schedule for achieving them, and take other steps that would seem to require legislation." However, the courts already decide complex cases involving water pollution, air pollution and toxic dumping, as noted by California Attorney General Jerry Brown.
Yesterday, the 2nd Circuit Court of Appeals reinstated the lawsuit, holding that "the federal common law of nuisance governs their claims" because the companies contributions to climate change interfered with a "public right in protecting natural resources."
This may impact the climate change negotiations in the Senate. If Congress does not truly address climate change, or blocks the EPA from regulating global warming gases as a pollutant under the Clean Air Act as determined by the U.S. Supreme Court, there still remains the potential for the GHG emitters to be held accountable by the courts.
The theory of the states is important because it is a claim based on the federal common law of public nuisance. That is, the GHG emissions constituted a public nuisance because it had negative impacts of the environments, such as 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 states cited studies by the UN and the National Academy of Science that concluded that their environments had already sustained damage and would sustain more damage in the future.
The Second Circuit defined public nuisance as involving both an unreasonable interference with a right common to the public. The court noted circumstances that indicate that an interference with a public right is unreasonable include the following:
(a) Whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or
(b) whether the conduct is proscribed by a statute, ordinance or administrative regulation, or
(c) whether the conduct is of a continuing nature or has produced a permanent and long-lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right.
One reason that the Court determined that the lawsuit was valid is because there is no specific federal regulation of climate change.
And although the Clean Air Act addresses pollution and global climate change, the court ruled, the Environmental Protection Agency "does not currently regulate carbon dioxide under the (Act) - at least not in the sense that EPA requires control of such emissions at this time." In other words, the EPA has only proposed regulation; it hasn't imposed it.
Without specific regulation, the Clean Air Act and other federal laws "touching on" global warming don't prevent the plaintiffs from suing under federal nuisance laws, the court concluded.
The power companies argued that Congress has already sufficiently legislated on carbon dioxide emissions and global climate change and this federal legislation precluded an action based on the federal common law of nuisance. The court rejected this argument because the so-called comprehensive legislative scheme regulating GHG and climate change is limited now to the Clean Air Act (CAA) and issues such as scientific research, technology development, and reporting of emission levels by electric utilities. In short, there is no law to limit GHG emissions that would address the problems raised by the States.
The CAA requires the EPA to regulate air pollutants that "cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare," which includes effects on land, water, crops, animals, wildlife, and climate. However, as the Court noted, the "EPA does not currently regulate carbon dioxide under the CAA --- at least not in the sense that EPA requires control of such emissions at this time." In the U.S. Supreme Court decision of Massachusetts v. EPA, the Court issued a narrow holding that GHG constituted an air pollutant and therefore the EPA has statutory authority to regulate the emission of GHG "from new motor vehicles." The Second Circuit believes that Massachusetts v. EPA would also apply to emission of GHG from "stationary sources as well."
However, the EPA has statutory authority under CAA to regulate GHG only if the EPA issues a finding determining that GHG emissions cause or contribute to air pollution that may reasonably be anticipated to endanger public health or welfare. To date, EPA has not issued any such findings but only "proposed to find that greenhouse gases endanger public health and welfare" in its proposed endangerment finding. The Second Circuit noted that "a proposed finding has no effect in law that would affect any rights at issue here." Moreover, a proposed finding by the EPA on the issue of new motor vehicles would not "automatically trigger regulation" of GHG emissions from stationary sources. Finally, when the EPA does ever issue findings on both motor vehicles and stationary sources, it then has to complete the rulemaking process before it can legally regulate GHG emissions.