On August 2 2010 five electric power companies(1) filed a petition for certiorari with the Supreme Court, seeking review of a Second Circuit decision holding that power companies can be sued for creating a public nuisance by emitting greenhouse gases. The litigation began in 2004, when eight states, as well as the city of New York and several private land trusts, brought an action against the nation's five largest coal-burning power companies,(2) alleging that their greenhouse gas emissions create a nuisance by contributing to global warming. The Southern District of New York dismissed the case on the grounds that it posed non-justiciable political questions.(3) The plaintiffs appealed, and on September 21 2009 the Second Circuit issued an opinion reversing the case's dismissal (for further details please see "Courts are open for climate change lawsuits against power companies").(4)
Key issues raised in the petition to the Supreme Court by the power companies include:
- the national importance of resolving whether greenhouse gases can or should be regulated by the courts on a case-by-case basis;
- whether court decisions are precluded by new federal regulations governing greenhouse gas emissions that were not in place at the time of the Second Circuit's decision, such as the Environmental Protection Agency (EPA) and National Highway Traffic Safety Administration joint emissions standards for vehicles and the EPA greenhouse gas tailoring rule for stationary sources;
- the prospect of a proliferation of cases seeking damages for alleged injuries caused by multiple defendants' contribution to climate change;
- whether plaintiffs have legal standing to sue;
- whether the Second Circuit was justified in deviating from other recent federal court decisions in which common law claims against greenhouse gas emitters have been dismissed;(5)
- whether a court-imposed emissions cap requires policy decisions that are not within the proper province of the courts; and
- whether the Second Circuit's decision represents an unwarranted extension of the Supreme Court's decision in Massachusetts v EPA.(6)
(2) The named plaintiffs were American Electric Power Company, Inc and its subsidiary American Electric Power Service Corporation, Cinergy Corporation (since merged into Duke Energy), Southern Company, Xcel Energy and the Tennessee Valley Authority.
(5) For example: California v General Motors Corp, 2007 WL 2726871 (ND Cal 2007); Native Village of Kivalina v ExxonMobil Corp, 663 F Supp 2d 863 (ND Cal 2009) (appeal pending); Comer v Murphy Oil USA, 2007 WL 6942285 (SD Miss 2007), appeal dismissed for technical reasons, 585 F 3d 855 (5th Cir 2009).
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