Appeals Court Reinstates Climate Change Injury Claims

September 23, 2009
By James A. Holtkamp – Holland and Hart

On September 21, 2009, the U.S. Court of Appeals for the Second Circuit handed down a decision reversing a lower court's dismissal of claims brought against several major electric utilities seeking to abate CO2 emissions from power plants owned by the utilities because of alleged injuries from global warming. State of Connecticut v. American Electric Power Company Inc., 2009 WL 2996729 (2d Cir. Sept. 21, 2009). Click here to view the decision. The case was brought by several states, New York City, and three non-profit conservation organizations. In 2005, a lower court dismissed the complaints on the basis that the claims were not "justiciable," i.e., that they were not within the province of the judiciary to resolve, but rather were political questions best left to the legislative and executive branches. Connecticut v. Am. Elec. Power Co., 406 F. Supp.2d 265 (S.D.N.Y. 2005).

The court of appeals decision allows the claims to go forward for trial. The plaintiffs allege that the CO2 emitted by large coal-fired power plants owned by the defendants is a "public nuisance" under federal common law and that it is causing and will cause damage to them and to their citizens. The injuries alleged include shoreline erosion from storms and sea level rise, increased frequency and severity of storms and other weather events, increased morbidity and mortality due to longer and more frequent heat waves, increased smog, increased wildfires, disruption of ecosystems, and decreased snow pack (in the case of California). The non-profit plaintiffs also allege that the lands they protect in trust will be less suitable for recreation as a result of climate change-induced injuries to ecosystems.

The appeals court held that each category of plaintiffs has clear standing to bring the lawsuit, that the federal common law of nuisance allows for claims for climate-related damages, and that the federal Clean Air Act and other federal statutes do not "displace" the claims. It is important to note that the decision allows the plaintiffs to go forward to trial on their claims of injury and their requests for injunctive relief to force the power plants to abate CO2 emissions; it does not rule in the plaintiffs' favor on the merits of their claims. Nonetheless, it is a significant ruling that will energize persons and entities targeting greenhouse gas emissions from energy and industrial sources as a cause of climate change.

The impact of the holding is very significant. It provides a clear signal that claims may be brought in federal court by a wide variety of entities, ranging from individuals to public interest groups to state and local governments, for damages alleged to result from climate change, including future injuries. It also puts considerable pressure on EPA and Congress to address greenhouse gas emissions from stationary sources, because if the federal government does not do so, there is the prospect of expensive and potentially debilitating litigation against energy companies. The decision will presumably influence those courts of appeals still considering appeals of dismissals of climate change-related claims for damages, including Comer v. Murphy Oil (5th Circuit), California v. General Motors Co. (9th Cir.), and Native Village of Kivalina v. Exxon Mobil Corp., et al., 2008 WL 2951742 (C.D.Cal.).