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Second Circuit Rules in Closely-Watched Multi-State Action against Power Companies

Sarah Bertozzi, Advanced Law Clerk

On Sept. 21, a panel of the Second Circuit said the District Court should decide the merits of a suit brought by eight states, the City of New York, and three land trusts against five of the nation’s fossil-fuel power plants for injuries the plaintiffs allegedly suffered and will continue to suffer due to global warming. The U.S. District Court for the Southern District of New York had dismissed plaintiffs’ complaints because they raised political questions. The panel vacated the District Court’s decision and denied defendants’ other motions to dismiss.

The states involved are California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont, and Wisconsin.

Plaintiffs allege that the carbon dioxide emissions produced by defendants’ plants have already altered the climates in plaintiffs’ states and in the next 10 to 100 years will raise temperatures and sea levels there, causing severe injury to public health, ecology, and the economy. Plaintiffs rely, primarily, on the federal common law of nuisance for their cause of action. They seek to cap defendants’ emissions and to reduce them by a fixed percentage each year for at least 10 years.

The District Court reasoned that in order for it to grant such an injunction, it would have to make an initial policy determination about how best to balance the interests in pollution control with the interests in economic development—a policy judgment that the District Court said falls outside the realm of judicial discretion. The Second Circuit panel disagreed. It singled out federal common law causes of action as a special area where plaintiffs may assert claims for injunctive relief even if Congress has not yet passed any relevant legislation. Courts can decide these claims because the Constitution doesn’t commit the power to decide them to either of the other two branches, the panel said. There are also well-developed common law standards for resolving complex public nuisance cases that courts can draw on, and there is no risk to the judiciary’s credibility from inconsistent pronouncements where the other branches have yet to take a position on the issue.

The panel also held that the states could bring this suit because of their interests as sovereigns in the well-being of their citizens, natural resources, and economies and their interests as property owners. The panel found significant the states’ unique ability to hold power plants accountable in a way that individual citizens could not. It also concluded that the harm to the states’ property is and will be actual, not hypothetical and that it is enough for standing purposes that defendants contributed, in part, to this harm. The role of third-party power plants’ emissions in causing global warming is irrelevant.

After deciding that the District Court could hear plaintiffs’ claim, the panel went the further step of deciding that plaintiffs could and did make a public nuisance claim—that is, they properly alleged an unreasonable interference with a right common to the general public. Such a federal common law claim is still available to the states to make, the panel explained, because Congress has not directly addressed the issues raised by the claim. And the states made the claim well—they identified a public right to comfort and safety and to the protection and use of natural resources and public property and demonstrated how defendants unreasonably interfered with this right by knowingly continuing to produce hazardous carbon dioxide emissions. For all these reasons, then, the panel concluded, plaintiffs’ claim must be decided on the merits.

It is too early to tell the significance of this decision for other states looking to hold power plants accountable for their contributions to global warming and its attendant injuries. The panel’s decision may have to withstand en banc and/or Supreme Court review or both. The states may lose on the merits on remand. Congress may use this moment to pass comprehensive climate change legislation, unequivocally displacing the federal common law cause of action. In the meantime, states will pay close attention to what happens next.

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