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Republican Lawmakers Join Obama Administration in Urging Supreme Court to Overrule GHG Nuisance Case

February 17, 2011


Proving once again that politics makes for strange bedfellows, three prominent Republican lawmakers who have opposed EPA greenhouse gas regulation (see related story in this issue) have joined the Obama Administration in urging the U.S. Supreme Court to overturn a landmark appellate ruling allowing environmental plaintiffs to sue sources of greenhouse gases (GHGs) in tort. An amicus brief filed on behalf of Representative Fred Upton (R-MI), chairman of the House Energy and Commerce Committee, Representative Ed Whitfield (R-KY), who heads the Subcommittee on Energy and Power, and Senator James Inhofe (R-OK), ranking member of the Senate Environment and Public Works Committee in the case of American Electric Power v. Connecticut,[1] argues that public nuisance claims on climate change issues should be rejected by the Supreme Court because they present non-justiciable political questions.

Background to the AEP Case

The AEP lawsuits (two consolidated actions) were originally brought by eight states, the City of New York, the Open Space Institute, the Open Space Conservancy, and the Audubon Society of New Hampshire. The plaintiffs sought an injunction curbing the carbon dioxide emissions of six major power producers, who they claimed were the “five largest emitters of carbon dioxide in the United States and … among the largest in the world.” Part of the plaintiffs’ nuisance claim rested on their assertion that the defendants had “practical, feasible and economically viable options for reducing carbon dioxide emissions without significantly increasing the cost of electricity.”[2] District Court Judge Loretta A. Preska dismissed both lawsuits on the grounds that the cases raised non-justiciable political questions.[3]

After taking more than three years to review Judge Preska’s decision, the Second Circuit concluded: (1) that the case did not present non-justiciable political questions; (2) that federal common law on nuisance governs the plaintiffs’ claims and that the plaintiffs had stated claims under the federal common law; and (3) that the plaintiffs’ claims were not preempted by either EPA regulation or Congressional action.[4]

Similar Claims Have Been Considered in the Fourth, Fifth and Ninth Circuits

In North Carolina v. Tennessee Valley Authority,[5] the State of North Carolina and other plaintiffs had argued that emissions of conventional air pollutants from TVA’s power plants constituted a public nuisance. The district court agreed and issued an injunction that would have required TVA to immediately install additional air pollution controls on a number of power plants. TVA appealed, and the Fourth Circuit reversed the district court’s decision and vacated the injunction.

On October 16, 2009, the Fifth Circuit joined the Second Circuit in reversing a dismissal of common law tort claims based on actions alleged to have caused climate change. Thereafter, the Fifth Circuit agreed to rehearing en banc, but then dismissed the appeal on grounds that it lacked a quorum to transact judicial business based on the disqualification and recusal of one of the nine judges who had vacated the panel opinion and judgment.[6] This decision had the effect of reinstating the district court’s dismissal of the case, creating a technical circuit split on the issue of whether common law nuisance claims may be brought against greenhouse gas emitters.

A similar suit, Native Vill. of Kivalina v. ExxonMobil Corp.,[7] is currently making its way through the Ninth Circuit. Kivalina was brought in 2008 by the Alaskan coastal village of Kivalina, which maintained that a loss of sea ice caused by climate change threatened the land where the village is located. Kivalina sued numerous oil and power companies, asserting federal common law claims of public nuisance, as well as private and public nuisance claims under California state law. The Northern District of California dismissed the suit on political question grounds. While the case has been presented to the Ninth Circuit, no opinion has yet been issued.

The Solicitor General Joins in the Request to Have the Second Circuit Acknowledge the Administration’s Regulatory Efforts

In a brief filed back in August, then acting Solicitor General Neal Kumar Katyal joined in the petitioners’ request for certiorari, maintaining that newly-finalized regulations on greenhouse gases issued by the EPA have displaced the type of common-law claim that the Second Circuit had sanctioned. At the time it was filed, the Solicitor General’s brief was reviewed in this newsletter. See Solicitor General Sides With Utilities, Asking Supreme Court to Block Common Law Climate Change Lawsuit, Marten Law Environmental News (September 2, 2010).

Katyal urged the court to vacate the Second Circuit’s decision and remand the case for further proceedings, this time taking into account the Administration’s push to regulate greenhouse gases under the Clean Air Act: “The court of appeals held that plaintiffs’ federal common-law actions for public nuisance had not been displaced by the CAA because ‘EPA does not currently regulate carbon dioxide under the CAA,’ and does not regulate such emissions from stationary sources.”[8] The Solicitor General argued that the facts have changed since the decision:

Since this court held in 2007 that carbon dioxide falls within that regulatory authority, EPA has taken several significant steps toward addressing the very question presented here.… That regulatory approach is preferable to what would result if multiple district courts – acting without the benefit of even the most basic statutory guidance – could use common-law nuisance claims to sit as arbiters of scientific and technology-related disputes and de facto regulators of power plants and other sources of pollution both within their districts and nationwide.[9]

Even While Condemning Them, the Congressional Amici Argue that EPA’s Actions and Congressional Debate Show a Non-Justiciable Political Question Exits

In their brief, even while adamantly opposing them, the three lawmakers reluctantly concede that EPA’s action to place limits on emissions creates an argument against judicial review of the nuisance claims presented in AEP. They argue that the questions presented in the case are “exceedingly complex and controversial national and international climate change issues [which have] been the subject of extensive legislative and regulatory activity by both the Congress and the Executive branch.”[10]

Congressional Actions

The fact that the three lawmakers who filed the brief have so far been successful in preventing Congress from taking action on greenhouse gases made it difficult for them to point to definitive action from Congress creating a political question. Nevertheless, they stressed amendments to the Clean Air Act in 2005 to establish a renewable fuel program and direction in 2007 requiring EPA to require mandatory reporting of greenhouse gases.[11] They also pointed to the increased number of hearings and the fact that Congressional appropriations to study climate change have been steadily increasing from $4 billion in 1998 to $45 billion in 2009.[12]

Based on Congress’ failure to adopt a cap and trade bill, the lawmakers were forced to construe the debate itself as evidence of a political question: “[C]ap-and-trade legislation was never considered in large measure because of the intense political opposition to the increased energy costs and job losses caused by the legislation’s mandates.”

EPA’s Regulatory Actions

While cataloguing EPA’s regulatory actions, the Republicans could not resist attacking the greenhouse gas regulations, noting that they “believe strongly that many of these efforts ... may well exceed the authorities Congress has vested” in the executive branch and are “extremely misguided.”[13] Despite this criticism, the lawmakers relied on the fact that

In just two years, the Obama Administration has unleashed a torrent of greenhouse gas regulations designed to address climate change, basing its regulatory assault primarily on the authority of the Clean Air Act and this Court’s decision in Massachusetts v. EPA. EPA’s proposed and final regulations in this area will have an effect on virtually every aspect of the American economy.… Because of the profound effects of these regulations on the economy, Congress has been and will continue to be engaged in oversight of the EPA as it seeks to implement these regulations under the Clean Air Act.[14]

“The Legislative and Executive Branches Are Doing Their jobs”

Based on the Congressional and administrative action catalogued in their brief, the lawmakers argue the courts have no business weighing into the area and “using the judicial process to resolve what are purely political questions.”[15] They maintain that EPA’s regulations “firmly establish” that Congress and the administration “are aggressively resolving what United States policy on climate change should be.”[16] According to the lawmakers, “[t]he Legislative and Executive branches are doing their jobs in a way that the Constitution envisions,”[17] making judicial intervention inappropriate.

Relying on prior Supreme Court cases, the brief argues that “[t]he Supreme Court has long recognized that there are cases that raise political questions that should be reserved for the political branches of government.”[18]


In joining with the Administration and arguing that Congress and the EPA have taken sufficient political action to remove the case from the judicial arena, the three lawmakers have sought to address one of the Second Circuit’s primary reasons for agreeing to have the judiciary retain jurisdiction in the case. In its opinion, the Second Circuit specifically noted that “[i]t may happen that new federal laws and new federal regulations may in time pre-empt the field of federal common law of nuisance. But until that comes to pass, federal courts will be empowered to appraise the equities of the suits alleging creation of a public nuisance by greenhouse gases.”[19] The Supreme Court will soon be required to determine whether Congress’ debate and EPA’s regulations are sufficient to remove the case from the federal courts.

The Supreme Court announced last week that oral argument in American Electric Power v. Conn. will take place on April 19. A decision is anticipated this summer.

For more information, please contact any member of our Climate Change or Environmental Litigation practice groups.

[1] U.S. Supreme Court Case No. 10-174 (AEP).

[2] Complaint at ¶ 5, Civ. No. 04-5669 (quoting American Electric Power v. Connecticut, 582 F.3d 309, 317 (2nd Cir. 2009)). At the time the Second Circuit issued its opinion in the case, it was reviewed in this newsletter. See Second Circuit Allows Federal Nuisance Claims for Global Warming to Proceed, Marten Law Environmental News (September 23, 2009).

[3] Judge Preska’s opinion appears at Connecticut v. Am. Elec. Power Co., 406 F. Supp. 2d 265 (S.D.N.Y. 2005). At the time Judge Preska issued her opinion, it was reported in this newsletter. See District Court Judge Dismisses States’ Global Warming Lawsuit, Marten Law Group Environmental News (October 15, 2005).

[4] 582 F.3d at 315.

[5] 615 F.3d 291 (4th Cir. 2010).

[6] Comer v. Murphy Oil, USA, 609 F.3d 1049 (5th Cir. 2010).

[7] 663 F. Supp. 2d 863 (N.D. Cal. 2009). The Kivalina case and the Fifth Circuit’s consideration of the Comer case were reviewed in this newsletter. See Before the Deluge*: Fifth Circuit Joins Second Circuit in Allowing Climate Change Tort Suits, while District Court Dismisses Similar Claims, Marten Law Environmental News (November 4, 2009).

[8] Solicitor General’s Brief at 22-23 (quoting Pet. App. 135a, 144a).

[9] Id. at 16-17.

[10] Amicus Brief at 3.

[11] Id. at 4.

[12] Id. at 5.

[13] Id. at 6.

[14] Id. at 7-8 (citations omitted).

[15] Id. at 13.

[16] Id. at 6.

[17] Id. at 13.

[18] Id. at 11 (citing Baker v. Carr, 369 U.S. 186, 217 (1962) and Vieth v. Jubelirer, 541 U.S. 267, 277 (2004)).

[19] American Electric Power v. Connecticut, 582 F.3d 309, 392-93 (2009).

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