Parties in two different cases are seeking to involve the U.S. Supreme Court for the first time in the question of whether traditional tort doctrines like nuisance can be applied to greenhouse gas emissions.
On August 26, 2010, a group of Mississippi residents asked the U.S. Supreme Court to address procedural issues arising from the U.S. Court of Appeals for the Fifth Circuit's dismissal of their appeal without a ruling on the merits of their tort lawsuit against dozens of oil, chemical, and utility companies for harms allegedly caused by the defendants' greenhouse gas emissions.
A three-judge panel of Fifth Circuit judges initially reversed a Mississippi district court's dismissal of the lawsuit. When the Fifth Circuit voted to rehear the case en banc, the panel's decision was vacated.
However, before the case could be reargued, a majority of the judges on the Court of Appeals recused themselves from the case, leaving too few judges to constitute a quorum under the Fifth Circuit's rules. Having already vacated the initial appellate decision, the Court of Appeals concluded that the reinstated district court decision would stand and the Fifth Circuit could take no further action.
In a petition to the Supreme Court for a writ of mandamus, In Re Ned Comer, et al., No. 10-294, the residents do not address the merits of their dismissed claims, but rather seek the extraordinary remedy of mandamus to have the Supreme Court address, among other things, procedural questions about the status of an appeal when an en banc court loses its quorum after granting rehearing, but before hearing argument en banc. The residents contend that the Fifth Circuit has a nondiscretionary duty to decide the appeal, and that the only proper way to do so (if that court still lacks a quorum) is to return the case to the original three-judge panel. On September 9, the Supreme Court directed the respondents in the case to respond to the petition by October 29, 2010.
In the other climate change tort case in which a request for Supreme Court review is pending, Connecticut v. American Electric Power, No. 10-174, American Electric Power and other utility companies petitioned for review in the more traditional way, i.e., a writ of certiorari. In that case, the Court of Appeals for the Second Circuit ruled that Connecticut and several other states (and the City of New York and two private land trusts) could move forward with a suit seeking greenhouse gas emissions reductions under a federal common law nuisance theory. The utility companies' petition is supported by 12 states and various industry groups, as well as by an organization called Unions for Jobs and the Environment, which is backed by several large unions, including the United Mine Workers and the Teamsters.
The likelihood of that case being reviewed by the Supreme Court was enhanced on August 24, 2010, when the United States' Acting Solicitor General Neal Katyal, representing the Tennessee Valley Authority (TVA) (a government-owned company that was named as defendant in the case), asked the Court to vacate the Second Circuit's decision. In his brief for the TVA, the Solicitor General adopts slightly different theories—and proposes a different disposition—than the utility company petitioners. Specifically, he argues that the plaintiffs' claims are barred by principles of prudential standing, and that the nuisance action is displaced by EPA's regulatory actions.
While the Solicitor General recommends that certiorari be granted, he argues against plenary review of the case (i.e., full merits briefing and argument) and instead asks simply that the Second Circuit's opinion be vacated and the case remanded to the lower courts so that the arguments and developments described in the TVA brief can be more fully addressed. Briefs from Connecticut and other plaintiffs in response to the utility companies' request for a writ of certiorari are due November 3, 2010.