Federal appeals court allows climate change nuisance case to go forward against power companies; EPA issues final greenhouse gas reporting rule

It was a big week in the rapidly developing field of climate change law.  First, the U.S. Court of Appeals for the Second Circuit (based in New York) allowed a nuisance case brought by states, New York City, and nonprofit environmental groups against five major power companies that operate coal fired power plants to go forward.  The decision, Connecticut et al. v. American Electric Power Co. et al., is a huge victory in the legal fight against climate change.  The court essentially rejected every major legal defense that the power companies put forward.  Some highlights:

1. The court rejected the argument that greenhouse gas pollution and climate change harm is a “political question” that can only be addressed by legislatures and Congress – instead such claims can be heard in court;
2. The court rejected the argument that the environmental groups didn’t have standing – because their property interests would be harmed in the future by climate change, the environmental groups could bring the nuisance claims;
3. The court rejected the argument that a public nuisance claim can’t be used by environmental groups – a public nuisance is an interference with a right common to the general public and can be used to seek damages from greenhouse gas pollution;
4. The Court rejected the argument that the nuisance claims were preempted by the federal Clean Air Act – at least not yet, but that could change if and when the US EPA begins regulating greenhouse gas emissions under the Clean Air Act or under new legislation.

This case will have two immediate implications.  First, it opens the door to public nuisance lawsuits against greenhouse gas pollution from power plants, incinerators, cars, and any other major source.  By rejecting most of the typical legal arguments that would be used to dismiss a climate change nuisance case with a thorough 139 page opinion, the federal Court of Appeals has provided a legal roadmap for other courts to follow.  Second, the decision will motivate industry to seek either new climate change legislation or even regulation under the Clean Air Act to preempt these types of cases in the future.  While industry may not love the idea of greenhouse gas regulation, they would take regulation over litigation.

Also, it’s worth noting the judges that decided this case.  The three judge panel originally included Sonia Sotomayor, who was ultimately appointed to the U.S. Supreme Court and did not take a part in the final decision.  The other two judges are hardly crazy liberals - Judge Joseph McLaughlin was appointed by President George H.W. Bush and Judge Peter Hall was appointed by President George W. Bush.

Just a day after the court’s decision, the U.S. EPA issued its final rule for mandatory reporting of greenhouse gas emissions.  Beginning January 1, 2010, the U.S. EPA will require all major sources that emit 25,000 metric tons or more of carbon dioxide (CO2) equivalent per year to report greenhouse gas emissions annually.  This new reporting requirement will cover approximately 85 percent of the nation’s greenhouse gas emissions.  Reporting greenhouse gas emissions is likely just the first step towards eventually regulating the emissions.  Coupled with the court’s decision in Connecticut v. American Electric Power Co., it’s a big sign of progress in the legal fight against climate change.