Immediately after the U.S. Courts of Appeal for the Second Circuit released its decision in State of Connecticut v. American Electric Power Co. Inc., White House climate change czar Carol Browner observed and proclaimed that "[T]he courts are starting to take control of this issue ... if they were to follow this out, they would be setting the standards." In this decision, the court held that industrial facilities can be sued for creating a federal common law global warming public nuisance and that courts are fully capable of forcing industry to abate emissions of greenhouse gases. This ruling is a dramatic departure from the position taken by district courts in at least three similar suits that had uniformly held that climate change lawsuits had to be dismissed because they presented non-justiciable "political questions" that could not be decided due to a lack of standards for determining whether the defendants' conduct was unreasonable, and implicated overarching national and international policy implications of regulating greenhouse gases.
Characterizing the suit as an "ordinary tort case," the Second Circuit disagreed, stating that: "[i]t is error to equate a political question with a political case ... . [T]he judiciary can no more usurp executive and legislative prerogatives than it can decline to decide matters within its jurisdiction simply because such matters may have political ramifications." It then went on to hold that all of the plaintiffs had standing to bring the suit, and that none of their claims are currently displaced by regulations or legislation. It is widely believed that this decision may well open the floodgates on current and future climate change litigation. This decision will almost certainly be challenged by a motion for rehearing en banc. But until it is modified or reversed, the decision opens the door for creative claimants and lawyers to bring new public nuisance suits against industry.