September 23, 2009

Second Circuit's Decision in Connecticut v. AEP Makes Clear No One is Above the Law

The Second Circuit's ruling Monday in State of Connecticut, et al. v. American Electric Power Company Inc., et al. revived a public nuisance lawsuit against the nation’s five largest electric power companies. The case opens the door to a potential judicial remedy for the alleged harm and increases the pressure on Congress and the Executive Branch to devise a more comprehensive solution to our greenhouse gas problem.

In an ideal world, would we give the task of designing facility-specific climate controls to the courts? Of course not. But we don’t live in an ideal world. Congress is paralyzed and EPA’s authority under the Clean Air Act has not yet been translated into concrete limits on greenhouse gases. The Second Circuit’s decision maintains the courts’ traditional common law powers to adjudicate claims that one party’s actions are harming another. The other two branches of government should take note.

Eight states, the City of New York, and several non-profit land trusts brought the case against five large power companies, companies that generate about a quarter of the U.S. electric power sector’s carbon emissions and about 10 percent of the nation’s total emissions. Pointing to current impacts on water supplies and coastal erosion and a litany of future impacts on the states’ interests, the plaintiffs alleged that the companies’ carbon emissions constitute a “public nuisance” – “an unreasonable interference with a right common to the general public.”

In 2005, the Southern District of New York dismissed the suit, asserting that the case raised non-justiciable political questions. Under the “political question doctrine,” the district court concluded that only the political branches, not the judiciary, could resolve the complex balancing of environmental and economic issues presented, and that the courts could not act without a preliminary policy determination from the more accountable branches of government.

The Second Circuit rejected the district court’s reasoning. The Court stated that “simply because an issue may have political implications does not make it non-justiciable.” (19) The Court held that a court cannot “decline to decide matters within its jurisdiction simply because such matters may have political ramifications.” (35) The Second Circuit found that the common law of nuisance provided the courts with sufficient guidance, and stated that “[t]he fact that a case may present complex issues is not a reason for federal courts to shy away from adjudication.” (30) As the court stated, “federal courts have successfully adjudicated complex common law public nuisance cases for over a century.”

At stake is the role of the courts in the U.S. legal system. The United States has a common law tradition: where one party is injured by another, the victim can turn to the courts for redress, unless and until Congress has displaced or preempted the common law action. Quoting an earlier Supreme Court decision, the Second Circuit stated that “[t]he department to whom this issue has been ‘constitutionally committed’ is none other than our own – the Judiciary.’” (23) Precluding common law jurisdiction would disturb the balance of power among the branches, not protect it.

Allowing common law jurisdiction could also stimulate a positive dynamic among the branches by encouraging legislative action. Comprehensive climate legislation in Congress has stalled, and the Executive Branch is only beginning to explore the mechanisms for applying the Clean Air Act to greenhouse gas emissions from existing stationary sources like the power plants at issue in the case. Congress and the Executive Branch are more likely to act expeditiously if the courts are setting standards without their input or control. Moreover, industries that have resisted legislation, like the coal industry, will have an incentive to support rather than oppose legislation if the alternative is piecemeal control by the courts.

That dynamic is not unprecedented. Before the advent of the major environmental statutes in the 1970s, common law courts struggled, often imperfectly, with the complex environmental cases brought before them. The weaknesses of the common law created the incentive for more comprehensive legislation.

The defendants in this week's case also argued that, even if the political question doctrine does not deprive the courts of jurisdiction, the federal Clean Air Act has displaced the federal common law of air pollution. Where federal legislation has comprehensively addressed an environmental problem, the need for the courts to fashion their own common law remedy recedes. The Second Circuit emphasized that the federal legislation must speak directly to the issue at hand before the common law is displaced. Since EPA has not yet developed regulations limiting greenhouse gas emissions from existing stationary sources, the Court found that the Clean Air Act does not speak directly to the issue and does not displace a common law action challenging carbon emissions from stationary sources. The Court leaves open the possibility that future EPA regulations under the Clean Air Act would displace common law actions. The Court’s displacement ruling heightens the pressure for prompt action by Congress and the Executive Branch, creating an even stronger incentive for concrete emissions limitations on greenhouse gas sources.

Whatever the seeming absurdity of letting a district court judge fashion emission limits for a significant portion of the nation’s electricity generators, there is wisdom in the structure. Without a common law option, polluters are simply unaccountable. Giving the common law courts jurisdiction makes clear that no one is above the law. And the more awkward the fit, the greater the incentive for the legislature and EPA to provide a more suitable alternative.

Alice Kaswan, CPR Member Scholar; Professor, University of San Francisco School of Law. Bio.

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