Global Climate Change Law Under Review
August, 2010
by Amy R. Paulus and Michelle R. Valencic and Timothy F. Jacobs and Amber N. Oleson
Petition to U.S. Supreme Court Filed: American Electric Power Co. Inc. v. Connecticut, et. al.
American Electric Power Company, American Electric Power Service Corporation, Cinergy Corporation, Southern Company, Xcel Energy Inc., and the Tennessee Valley Authority (collectively referred to as “utilities defendants” or “Petitioners”) filed a petition for a writ of certiorari on August 2, 2010, asking the United States Supreme Court to review a Second Circuit Court of Appeals’ decision that allows States and private plaintiffs to maintain actions under federal common law for creating a “public nuisance” by emitting pollutants linked to global climate change. Petitioners fear that the appellate court’s decision created an “unprecedented cause of action” under federal common law that authorizes courts to impose caps on utilities defendants’ greenhouse gas emissions as relief for alleged future risks of global climate change.
Petitioners request that the Supreme Court overturn the Second Circuit’s ruling in favor of eight states, the City of New York, and three land trusts (collectively referred to as “Plaintiff-appellants”). As a result of the ruling, Petitioners contend that a “single judge could set emissions standards for regulated utilities across the county -- or, as here, for just that subset of utilities that the plaintiffs have arbitrarily chosen to sue.” For utilities defendants, the concern does not end there. “Judges in subsequent cases could set standards for other utilities or industries, or conflicting standards for these same utilities.”
For the Petitioners, the importance of the Supreme Court’s intervention flows directly from the extraordinary breadth and consequence of the Second Circuit’s decision. The Second Circuit found that the district court erred in dismissing the case as presenting a non-justiciable political question and held that all States have standing to sue the utilities under federal common law for nuisance claims.
“At stake is the financial health and security of numerous sectors of the economy,” according to the petition. Moreover, “[a]n order directing emissions reductions would affect the entire electricity generating industry throughout multiple regions of the country and transform the manner and cost of supplying electricity to millions of individuals and businesses.” Thus, “[t]he ramifications of this holding, if it is allowed to stand, are staggering.”
Specifically, the petition requests that the Supreme Court determine whether States and private parties have standing to seek “judicially-fashioned” emission caps on the defendant utilities for their alleged contribution to harm associated with global climate change. In addition, the utilities defendants request that the Supreme Court determine if courts are allowed to establish caps on carbon dioxide emission based on complaints from States and private parties. Further, the petition seeks the Court’s ruling as to whether a cause of action to cap carbon dioxide emission can be implied under federal common law when the United States Environmental Protection Agency has already been assigned federal responsibility for such regulation under the Clean Air Act.
Moving forward, Plaintiff-appellants must file briefs in opposition, if any, on or by September 3, 2010. Petitioners may file a reply addressing any new arguments raised within ten (10) days after receipt of the opposition brief. The Supreme Court’s review on a writ of certiorari is not a matter of right, but of judicial discretion. The Supreme Court will only grant a petition for a writ of certiorari for compelling reasons.
We will continue to monitor all developments and provide updates on this landmark climate change lawsuit. Please contact our Global Warming and Climate Change Liability Coverage Team if you have any questions via CM Partner Amy Paulus, apaulus@clausen.com, (312) 606-7848.
