In the absence of mandatory federal limits on greenhouse gas emissions, states and advocacy groups have turned their attention to the courts to achieve their goals. Three recent decisions provide an indication of what is to come. These cases address issues of standing, political question doctrine and the viability of common law causes of action, and judicial review of agency action. The three courts have taken different approaches, creating uncertainty for potential litigants. It seems inevitable that more suits will follow.
Connecticut v. American Electric Power Co.
The most recent decision in this climate change trilogy involved a pair of cases brought by eight states, the City of New York, and three advocacy groups against five electric power producers under the federal and state common law of nuisance. Connecticut v.American Electric Power Co., 2005 WL 2249748 (S.D.N.Y. 2005). The plaintiffs charged that defendants, the "five largest emitters of carbon dioxide" in the U.S., were responsible for "one quarter of the U.S. electric power sector’s carbon dioxide emissions" and liable for public health and environmental harms stemming from global climate change. Plaintiffs sought injunctive relief, in the form of courtordered caps on — and phased reductions of — defendants’ carbon dioxide emissions. Arguing on behalf of defendants, Sidley Austin Brown & Wood LLP and others contended that the cases should be dismissed on a variety of grounds, including the absence of any federal common law of nuisance, displacement of such federal common law by congressional and executive actions regarding climate change, standing, and preemption of state common law.
On September 15, 2005, the court, adopting defendants’ position that addressing climate change is the prerogative of the executive and legislative branches, not the judicial branch, rejected plaintiffs’ claims on "political question" grounds. The court found that plaintiffs’ requested relief would require balancing of health and environmental concerns with economic concerns to set and implement emissions caps, which in turn involved a host of policy determinations unresolved by the political branches. Applying the factors laid out in Baker v. Carr, 369 U.S. 186, 198 (1962), and "the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion," the court held that courts were not the proper forum to impose controls on greenhouse gas emissions. Accordingly, the case was dismissed for lack of jurisdiction. The court’s rationale is a major blow to climate change litigation plaintiffs.
Massachusetts v. EPA
On August 23, 2005, the D.C. Circuit dismissed a petition for review brought by twelve states and several environmental advocacy groups challenging EPA’s denial of a petition to regulate carbon dioxide emissions from motor vehicles under the Clean Air Act, 42 U.S.C. § 7521(a)(1) ("CAA"), for the purpose of addressing climate change. Massachusetts v. EPA, 415 F.3d 50 (D.C. Cir. 2005). The three-judge panel was deeply divided, issuing three separate opinions. EPA had argued that (1) petitioners did not have standing, (2) it lacked authority to regulate carbon dioxide emissions for climate change purposes, and (3) even if it did have authority, its decision to leave these emissions unregulated was not arbitrary.
Judge Randolph side-stepped the standing and legal authority issues, instead concluding that the scientific uncertainty and complex policy determinations underpinning EPA’s decision not to regulate carbon dioxide emissions meant that EPA had the discretion not to regulate. Judge Sentelle, however, would have dismissed the petitions based on plaintiffs’ failure to demonstrate injury sufficient to support standing. He concluded that climate change is a harm to humanity at large, making it a generalized grievance rather than a particularized injury to the petitioners. Finally, Judge Tatel would have granted the petitions, concluding that petitioners had standing, EPA had authority to regulate carbon dioxide emissions under the CAA, and EPA’s decision not to regulate was arbitrary, capricious and contrary to law. Petitioners have pledged to appeal this split decision, which may not be the final word on EPA’s authority to regulate greenhouse gas emissions.
Friends of the Earth v. Watson
In the one success for plaintiffs, the Northern District of California allowed environmental groups and cities to proceed with their challenge to the alleged failure of the Overseas Private Investment Corporation ("OPIC") and the Export-Import Bank ("Ex-Im") to consider global climate change in their funding decisions. Friends of the Earth v. Watson, 2005 WL 2035596 (N.D. Cal. 2005). Plaintiffs alleged that OPIC and Ex-Im failed to comply with the procedural requirements of the National Environmental Policy Act, 42 U.S.C. §§ 4321-4335 ("NEPA"). On July 15, 2005, the court denied defendants’ motion for summary judgment, rejecting each of defendants’ claims regarding plaintiffs’ standing to sue, the nature and finality of agency action, and the effect of OPIC’s authorizing statute on judicial review and NEPA requirements.
The key issue in this case was plaintiffs’ standing. As this was a NEPA case, the court’s standing analysis turned on the low threshold for demonstrating "procedural" injury, finding that the failure of OPIC and Ex-Im to consider climate change impacts was sufficient. Acknowledging that the extent of harm due to the projects’ contribution to climate change was uncertain, the court nevertheless held that "plaintiffs raising procedural concerns need not present proof that the challenged federal project will have particular environmental effects." The court found that the causation prong was met because NEPA plaintiffs "need not show that the ultimate outcome would be different if the procedures were followed," and defendants admitted that there were projects that would not have gone ahead without their support. Redressability was also met where, as here, the agency’s decision could be influenced by the required environmental considerations. Given the unique setting of this case and that government agencies were defendants, this decision is likely to have limited precedential value to cases challenging nongovernmental emitters of greenhouse gases. It does highlight, however, the growing importance of greenhouse gas emissions in government funding and permitting decisions.
Conclusion
Having failed to obtain mandatory caps on greenhouse gas emissions through federal legislation or regulation, states and advocacy groups have begun to turn to the courts to achieve their goals. As these three recent decisions demonstrate, these groups have only been partially successful. These cases, however, provide a glimpse into future litigation over climate change. Would-be plaintiffs will no doubt refine their tactics, leaving significant emitters of greenhouse gases at risk of additional litigation.
This article has been prepared by Sidley Austin Brown & Wood LLP for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Readers should not act upon this without seeking professional counsel.
