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Greenhouse Chill

Has the Supreme Court frozen climate change litigation?

Fortnightly Magazine - November 2011

approximately ten percent of all carbon dioxide emissions from human activities in the United States.” 16

In their complaint filed in the U.S. District Court for the Southern District of New York, the plaintiffs claimed they are or will be harmed by climate change, such as “warmer average temperatures, later fall freezes and earlier spring thaws, and the decrease in average snowfall and duration of snow cover on the ground.” 17 For example, California alleged the climate change will lead to the reduction of its mountain snowpack, “the single largest freshwater source, critical to sustaining water to the State’s 34 million residents,” as well as diminished summer runoff from mountain snow, water shortages, disruptions to the interrelated water systems and hydroelectric plants, and increased flooding. The states also alleged future injuries such as, among other things, increased deaths and illness due to heat waves, increased smog, increased concomitant respiratory problems, beach erosion, sea level rise and coastal inundation, salinization of marshes and water supplies, droughts and floods, and increased wildfires. 18

The plaintiffs asked the trial court to hold each defendant jointly and severally liable for creating, contributing to, or maintaining a public nuisance. The plaintiffs also asked the court to permanently enjoin the defendants to abate the global warming nuisance by requiring them to cap their carbon dioxide emissions and then reduce the emissions by a specified percentage each year for at least a decade. The defendants moved to dismiss the case on numerous grounds, including lack of recognized federal common law cause of action to abate GHG emissions, the displacement of federal common law by statutes, the political question doctrine, lack of standing to sue, and lack of jurisdiction for failure to state a claim under federal laws. 19 The U.S. District Court for the Southern District of New York dismissed the plaintiffs’ case based on the political question doctrine, stating “these actions present non-justiciable political questions that are consigned to the political branches, not the Judiciary.” 20 In other words, the district court held these types of cases should be handled by the executive branch or Congress, not the courts.

On appeal, a two judge-panel of the Second Circuit 21 vacated the trial court’s dismissal and held the plaintiffs’ claims don’t present non-justiciable political questions. 22 Characterizing the case as an “ordinary tort suit,” the court stated that seeking to limit emissions from coal-fired power plants is something that could be adjudicated by the courts. 23 The Second Circuit also held the plaintiffs have standing to bring their claims, 24 since they sufficiently alleged that their current and future injuries, i.e., harm to the environment, to the states’ economies and to public health, are “fairly traceable” to the defendants’ acts. 25 Moreover, relying on the Supreme Court precedents, 26 the Second Circuit held the plaintiffs can assert claims under the federal common law of nuisance, 27 and such claims aren’t displaced by federal legislation, 28 in part because no comprehensive federal GHG regulatory scheme has been established. The Circuit Court didn’t reach the plaintiffs’ state common law nuisance