On September 21, the Second Circuit reversed a district court’s decision dismissing two cases brought against six electric utilities alleging that they created a public nuisance by emitting too much carbon dioxide and other greenhouse gasses. The first case was brought by eight states, including California (yes, the Terminator is now the Tree Hugger), New York (that Spitzer guy again) and New Jersey, and the City of New York. The second case was brought by three environmental groups. The 139-page opinion is on the Second Circuit’s website, at http://www.ca2.uscourts.gov/decisions/isysquery/1c1c879d-ece0-4f9f-91a1-06a621c82188/1/doc/05-5104-cv_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/1c1c879d-ece0-4f9f-91a1-06a621c82188/1/hilite/
There’s no point in gilding the lily; here’s the opinion’s opening paragraph:
“Appeal from a judgment of the United States District Court for the Southern District of New York (Preska, J.) dismissing Plaintiffs-Appellants’ federal common law of nuisance claims as non-justiciable under the political question doctrine. We hold that: (1) Plaintiffs-Appellants’ claims do not present non-justiciable political questions; (2) Plaintiffs-Appellants have standing to bring their claims; (3) Plaintiffs-Appellants state claims under the federal common law of nuisance; (4) Plaintiffs-Appellants’ claims are not displaced; and (5) the discretionary function exception does not provide Defendant-Appellee Tennessee Valley Authority with immunity from suit. Accordingly, we VACATE the judgment of the district court and REMAND for further proceedings.”
In other words, it was a total win for plaintiffs.
Both complaints seek “abatement” of the nuisance, meaning they want an injunction forcing the companies to limit their emissions of greenhouse gasses, although apparently they don’t specify by how much. Nor do they seek money damages. The main difference between the complaints, according to the opinion, is that the governments alleged harm to their citizens, whereas the environmental groups alleged harm to their land holdings.
The most remarkable part of the opinion to me is the holding that the environmental groups have standing, i.e., the right to sue at all. After Massachusetts v. EPA, 549 U.S. 497 (2007), in which the Supreme Court held that states had standing to sue EPA, and that EPA has the authority to regulate greenhouse gasses under the Clean Air Act, it’s not surprising that the Second Circuit held that the states have standing. But I’m surprised about the environmental groups. If their case goes to the Supreme Court, there is no way – NO WAY – the Court will affirm the Second Circuit’s holding that the environmental groups have standing. And if I’m wrong, I promise I’ll donate twenty bucks to the Chamber of Commerce.
