Second Circuit Reversal in Connecticut v. American Electric Power Enables Significant Climate Change Litigation to Proceed

In a long-awaited decision, the US Court of Appeals for the Second Circuit has reversed the district court's decision in Connecticut v. American Electric Power Co. (“AEP”), a public nuisance lawsuit filed by eight state attorneys general, the City of New York, and three land trusts against six electric power companies based on greenhouse gas emissions. District Court Judge Loretta Preska originally dismissed the lawsuit on the grounds that it presented non-justiciable political questions, finding that the case required “identification and balancing of economic, environmental, foreign policy, and national security interests” of a “transcendently legislative nature.”

The unanimous two-judge ruling (more on that below) vacated and remanded Judge Preska’s ruling, holding – in a hefty 139 pages –  that:

“(1) Plaintiff-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.”

The appeal was argued on June 7, 2006 before a three-judge panel that included then-Second Circuit Judge Sonia Sotomayor. The long delay in ruling emerged as a potential issue during Judge Sotomayor’s confirmation process. The decision notes that “[t]he Honorable Sonia Sotomayor, originally a member of the panel, was elevated to the Supreme Court on August 8, 2009. The two remaining members of the panel [Judges McLaughlin and Hall], who are in agreement, have determined the matter.”

In reversing the district court decision, the Second Circuit stated:

“Nowhere in their complaints do plaintiffs ask the court to fashion a comprehensive and far-reaching solution to global climate change, a task that arguably falls within the purview of the political branches. Instead, they seek to limit emissions from six domestic coal-fired electricity plants on the ground that such emissions constitute a public nuisance that they allege has caused, is causing and will continue to cause them injury.”

Plaintiffs complaint seeks abatement of defendant’s carbon dioxide emissions on the grounds that those emissions contribute to global warming, which, plaintiffs allege, constitutes a “public nuisance.” Further analysis of this significant ruling will be posted on the Global Climate Law Blog later today.