Supreme Court to Hear Public Nuisance Suit on Climate Change

On December 6, 2010, the Supreme Court granted defendants’ a writ of certiorari in AEP v. Connecticut, a case in which eight states attempt to hold public utilities responsible for climate change under the public nuisance doctrine.[1] The case has been fully briefed with numerous interest groups filing amicus briefs and will be heard by the Supreme Court on April 19, 2011.

Eight states, New York City, and two land trusts, filed suit against six of the largest electric utility companies for “abatement of defendants’ ongoing contributions to a public nuisance” with the release of greenhouse gases which contribute to global warming.[2] The plaintiffs contended that the utilities are “substantial contributors to elevated levels of carbon dioxide and global warming” and comprise “approximately ten percent of all carbon dioxide emissions from human activities in the United States.”[3] Because of the millions of tons of carbon emissions, the utilities contribute to the risk of an abrupt change in climate due to global warming.[4]

The Southern District of New York dismissed the complaint based on non-justiciable political questions and on appeal the Second Circuit overturned the district court’s ruling.  The political question doctrine posits that some constitutional issues are not justiciable since the issue is committed to either the Congress or the President.[5] Such issues are viewed as political and not legal; there are “no judicially cognizable standards” by which a court could resolve the dispute.[6] In the present case, the Second Circuit Court of Appeals found that adjudicating the case would not violate the political question doctrine since there was no textually demonstrable constitutional commitment of the issue to a coordinate political department.[7] The utilities failed to sufficiently argue that the issue was textually committed to Congress by the Commerce Clause or that the issue dealt with matters involving foreign policy.[8]

Just because a case has political overtones does not make it non-justiciable.[9] Under the political questions doctrine a court “cannot reject as ‘no law suit’ a bone fide controversy”[10] simply because the case involves political undertones.  The controversy may involve issues that are political in nature and yet still not implicate a political question.  The Second Circuit viewed this case as being a political case but not involving a political question.[11]

Furthermore, the Second Circuit found that there was not a lack of judicially discoverable and manageable standards for resolving the case.  The principles of public nuisance law were well settled and provided appropriate guidance to the courts in reviewing the plaintiffs’ claims.[12] Public nuisance suits have been brought previously in the environmental law arena and have been successfully adjudicated illustrating that courts have previously been able to “grapple with complex scientific evidence, and resolved the issue presented, based on a fully developed record.”[13]

The Second Circuit also found that causation was sufficiently argued for the case to not be dismissed for lack of standing.  The court stated that at this stage of the suit, plaintiffs need only show that the injury was “fairly traceable to the actions of the defendant.”[14] Under this lightened causation standard, plaintiffs sufficiently proved causation.  Since the Court did not require the plaintiff’s to prove that it was foreseeable that their greenhouse emissions would lead to adverse effects associated with climate change, plaintiffs proved standing. The issue of proving the rigors of causation is “best left to the rigors of evidentiary proof at a future stage of the proceedings, rather than dispensed with at a threshold question of constitutional standing.”[15]

Being the first of several public nuisance/climate change suits that are working their way through the federal courts system, this case may serve as the bellwether case for all future suits that attempt to hold utilities and energy companies responsible for climate change and damages resulting there from under the public nuisance doctrine.


[1] American Electric Power Co. Inc. v. Connecticut, No. 10-174 2010 WL 4922905 (2010).

[2] Connecticut v. American Electric Power Co. Inc., 582 F.3d at 316.

[3] Id. at 316.

[4] Id. at 316.

[5] Daniel A. Farber Et Al., Cases and Materials On Constitutional Law: Themes for the Constitution’s Third Century 1246 (4th ed. 2009).

[6] Id.

[7] Connecticut v. American Electric Power Co. Inc., 582 F.3d at 324.

[8] Id. at 324.

[9] Id. at 332.

[10] Baker v. Carr, 369 U.S. 186, 217 (1962).

[11] Connecticut v. American Electric Power Co. Inc., 582 F.3d at 332.

[12] Id. at 329.

[13] Id. at 327.

[14] Id. at 345.

[15] Id. at 347.

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