The right issue, the wrong branch: arguments against adjudicating climate change nuisance claims.

• Author: Miller, Matthew Edwin

Climate change is probably today's greatest global environmental threat, posing dire ecological, economic, and humanitarian consequences. In the absence of a comprehensive regulatory scheme to address the problem, some aggrieved Americans have sought relief from climate-related injuries by suing significant emitters of greenhouse gases under a public nuisance theory. Federal district courts have dismissed four such claims, with each court relying at least in part on the political question doctrine of non justiciability. However, one circuit court of appeals has reversed to date, finding that the common law cognizes such claims and that the judiciary is competent and compelled to adjudicate them.

This Note argues that courts should dismiss climate-related public nuisance suits--at least those that seek injunctive caps on greenhouse gas emissions. Focusing on Connecticut v. American Electric Power Co. as a case in point, this Note concludes that such claims should be deemed nonjusticiable political questions or, alternatively, should be dismissed for lack of redressability. As an afterthought, the Note also briefly acknowledges some problems that could arise on the merits of this category of claims, along with policy concerns about permitting such litigation.

TABLE OF CONTENTS INTRODUCTION I. CLIMATE CHANGE POLITICS AND LAW GENERALLY II. CASES LIKE AMERICAN ELECTRIC POWER SHOULD BE DEEMED NON JUSTICIABLE A. The Purpose, Development, and Articulation of the Political Question Doctrine B. The Second Circuit's Political Question Analysis in American Electric Power C. At Least Two Baker Factors Should Apply to Cases Like American Electric Power 1. Extending the Political Question Doctrine to Climate Nuisance Suits 2. The Second Baker Factor: Judicially Manageable Standards 3. The Third Baker Factor: Initial Policy Determinations III. CASES LIKE AMERICAN ELECTRIC POWER SHOULD BE DISMISSED FOR LACK OF REDRESSABILITY A. The Proper Redressability Standard for Climate Nuisance Claims B. Problems with Line Drawing, Defendant Joining, and Nominal Relief. C. Line Drawing Aside, the Speculative Nature of Relief Should Negate Redressability CONCLUSION INTRODUCTION

The time has passed for debating whether climate change is a problem. After years of skepticism, the scientific consensus tells us that global warming poses a grave threat to the natural environment as well as to human health and welfare around the globe. (1) Although climate change is a complex phenomenon with natural contributing factors, the most significant cause of the current warming trend is the combustion of fossil fuels (oil, coal, and natural gas), which releases gases that amplify the greenhouse effect in Earth's atmosphere. (2) The aggregation of ecological, economic, and social harms attributable to the accelerating warming of the globe is frightening, worsening, and multifarious. (3) Yet notwithstanding the urgency of the problem, nations of the world do not agree about legal and economic mechanisms for mitigating or adapting to climate change.

In the United States, the absence of statutory regulation of greenhouse gas ("GHG") emissions has prompted some injured parties to seek redress via litigation through the common law tort of public nuisance. (4) These plaintiffs allege that emissions generated by power plants, oil and gas companies, and other corporations have harmed them by exacerbating the greenhouse effect, thereby contributing to injuries that result from global warming. Federal district courts have refused to entertain such suits, justifying dismissal on political question grounds--reasoning that adjudication is beyond the purview of the judiciary--and sometimes on standing grounds as well. (5) On the other hand, the Court of Appeals for the Second Circuit, (6) along with several scholars, (7) agree that courts can adjudicate climate change tort claims.

In considering the viability of climate change tort litigation, this Note examines public nuisance suits that seek an injunctive emissions cap, as opposed to monetary damages, for a remedy. It focuses on injunctive suits because Connecticut v. American Electric Power Co.--the earliest, most far-reaching climate nuisance claim now pending--uniquely contemplates such relief, and because different arguments would apply to suits for damages. (8) This Note argues that, in light of problems with justiciability and standing, courts should dismiss injunctive climate nuisance suits like American Electric Power. (9)

Part I of this Note outlines the current legal regime with regard to climate change, providing context for American Electric Power and the Second Circuit's reversal of the district court's dismissal of the case. Part II introduces the political question doctrine of nonjusticiability, explains its relevance to American Electric Power, and argues that the doctrine should extend to that case. Courts have not previously held that public nuisance claims present political questions. Nonetheless, the doctrine's articulation permits such an extension in cases like American Electric Power, and its basic purpose behooves it. Part III examines another potential bar to suit, the constitutional standing requirement of redressability, and argues that the court should have dismissed on this ground in the alternative. Finally, the Conclusion identifies some problems that may arise on the merits of suits like American Electric Power if they are found justiciable and redressable. It also notes some policy considerations that further challenge the wisdom of permitting such litigation.

1. CLIMATE CHANGE POLITICS AND LAW GENERALLY

   On the global level, governments and international organizations have taken some steps to mitigate climate change, but action thus far has been primarily limited to aspirational resolutions. The United Nations Framework Convention on Climate Change has sponsored three major global agreements to reduce GHG emissions. First was the Rio Earth Summit of 1990, (10) which imposed no binding obligations on signatories, followed by the Kyoto Protocol of 1997, (11) which was only minimally successful because it failed to limit the emissions of developing countries or the non-ratifying United States. (12) Greater urgency surrounded the December 2009 summit in Copenhagen, which sought to extend and improve upon the Kyoto framework, (13) set to expire in 2012. However, the accord produced by Copenhagen's 193 participating nations lacked the binding reductions pledges that many delegates and commentators had emphasized as crucial. (14)

   In the United States, federal law has largely avoided the climate issue, (15) but recent steps towards GHG regulation signal that change is forthcoming. Proposals are pending in Congress to implement comprehensive energy reforms, emissions reductions, and climate change mitigation strategies. (16)

   Moreover, prompted by the Supreme Court's only climate change ruling to date, Massachusetts v. EPA, (17) the Environmental Protection Agency ("EPA") has initiated the preliminary stages of regulating greenhouse gasses under the Clean Air Act ("CAA"). In Massachusetts, a 5-4 majority held that the EPA was required to issue a reasoned decision, grounded in the CAA, about why it would or would not make an official finding about whether motor-vehicle GHG emissions threaten human health and welfare by contributing to climate change. (18) In December 2009, considering the issue pursuant to the CAA, the EPA made such an "endangerment" finding--a prerequisite trigger for further regulation under various sections of the statute. (19) In April 2010, the EPA promulgated, in conjunction with the Department of Transportation, stricter standards for auto emissions and fuel economy. (20) The EPA is also moving forward with emissions reporting requirements for large stationary sources of GHGs, despite the Obama Administration's preference for congressional legislation to address climate issues instead. (21) Regional, state-level, and private-market efforts to reduce emissions exist as well. (22)

   In lieu of congressional or EPA emissions regulation preempting climate nuisance claims (such preemption could conceivably occur within one year), some Americans have turned to the courts to respond to climate change. To date, four public nuisance lawsuits related to climate harms have been filed in federal courts. All have been dismissed at the district level on political question or standing grounds. (23) In the fall of 2009, the Second Circuit reversed one of those dismissals. (24) Shortly thereafter, however, the Northern District of California dismissed its second climate nuisance claim, expressly declining to follow the Second Circuit's lead in entertaining such suits. (25) American Electric Power, pending in the Southern District of New York after remand by the Second Circuit, is the earliest complaint, the first reversal, and the most exhaustive opinion to date. It is also unique in that it involves injunctive relief, implicates the broadest array of litigants, and includes states as plaintiffs. (26)

   American Electric Power commenced in 2004 when eight states and New York City brought an action in the Southern District of New York seeking abatement of an alleged public nuisance caused by the carbon dioxide ("C[O.sub.2]") emissions of five large electric utilities. (27) The plaintiffs pointed to the "clear scientific consensus" that global warming has begun, identifying greenhouse gas emissions as a significant accelerating cause. (28) According to the complaint, the defendants' annual emission of 650 million tons of C[O.sub.2] has proximately caused global-warming-related injuries such as degradation of the physical environment, loss of recreation and land use, and heightened threats to human health and welfare. (29) For these reasons, the plaintiffs sought to hold the defendants jointly and severally liable for the alleged nuisance, to cap the defendants' C[O.sub.2]...