Climate Change Attorney Blog

The U.S. Supreme Court, in American Electric Power Company LLC v. Connecticut, held that the plaintiffs, which include several states and the City of New York, could not maintain their federal common law action against utility companies seeking to impose limitations on greenhouse gas emissions.

In summarizing the decision, Justice Ginsburg, writing for the majority, stated:

"We address in this opinion the question whether the plaintiffs (several States, the city of New York, and three private land trusts) can maintain federal common law public nuisance claims against carbon-dioxide emitters (four private power companies and the federal Tennessee Valley Authority). As relief, the plaintiffs ask for a decree setting carbon-dioxide emissions for each defendant at an initial cap, to be further reduced annually. The Clean Air Act and the Environmental Protection Agency action the Act authorizes, we hold, displace the claims the plaintiffs seek to pursue."

After noting that this action was commenced before the EPA began to take action to set rules governing the emission of greenhouse gases, the decision notes:

"it is an academic question whether, in the absence of the Clean Air Act and the EPA actions the Act authorizes, the plaintiffs could state a federal common law claim for curtailment of greenhouse gas emissions because of their contribution to global warming. Any such claim would be displaced by the federal legislation authorizing EPA to regulate carbon-dioxide emissions....The test for whether congressional legislation excludes the declaration of federal common law is simply whether the statute “speak[s] directly to [the] question” at issue. Mobil Oil Corp. v. Higginbotham, 436 U. S. 618, 625 (1978); see Milwaukee II, 451 U. S., at 315; County of Oneida v. Oneida Indian Nation of N. Y., 470 U. S. 226, 236–237 (1985).
We hold that the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants."

The Court also disagreed with the holding of the Second Circuit and the Plaintiffs' argument that federal common law claims are not displaced until the EPA exercises its rule making authority:

"Congress delegated to EPA the decision whether and how to regulate carbon-dioxide emissions from power plants; the delegation is what displaces federal common law. Indeed, were EPA to decline to regulate carbon-dioxide emissions altogether at the conclusion of its ongoing §7411 rulemaking, the federal courts would have no warrant to employ the federal common law of nuisance to upset the agency’s expert determination. EPA’s judgment, we hasten to add, would not escape judicial review....EPA may not decline to regulate carbon-dioxide emissions from power plants if refusal to act would be “arbitrary, capricious, an abuse of discretion, or other-wise not in accordance with law.” §7607(d)(9)(A). If the plaintiffs in this case are dissatisfied with the outcome of EPA’s forthcoming rulemaking, their recourse under federal law is to seek Court of Appeals review, and, ultimately, to petition for certiorari in this Court."

Finally, the Court noted that the Second Circuit had not addressed the issue of using State common law claims to impose limitations on emissions, since it had held that federal common law applied. As the issue of the preemptive effect of the Clean Air Act upon State common law claims had not been briefed, the Court left that issue for remand.

-Steven Silverberg

A series of lawsuits commenced, since the beginning of May, seek action by state and federal government on Climate Change, based upon the Public Trust Doctrine. A group called Our Children's Trust, in conjunction with other groups, commenced an action in the U.S. District Court for the Northern District of California on May 4, 2011. It has also started actions in eleven states.

The Federal complaint states the basis for the claim as follows:

"The Public Trust Doctrine provides that our federal officials have a fiduciary duty to protect the atmosphere from the effects of human-induced global energy imbalance and to hold our country's vital natural resources in trust for present and future generations of citizens. Our federal government may not manage the trust resource in a way that substantially impairs the public interest in a healthy atmosphere."

The complaint does not claim that a specific action or actions should be taken only that the government must take action.
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The Public Trust Doctrine has been described by the New York State Department of State, which administers New York's coastal resources as:

"The Public Trust Doctrine provides that public trust lands, waters, and living resources in a State are held by the State in trust for the benefit of all of the people, and establishes the right of the public to fully enjoy public trust lands, waters and living resources for a wide variety of recognized public uses."

The claim that the Public Trust Doctrine applies to climate change and its impacts upon the environment, on the one hand can be argued to be beyond the scope of the doctrine and on the other as a logical extension of the prior application of the doctrine. It will be interesting to see whether the courts view this as an intrusion into the realm of separation of powers or a mandate that must be enforced.

-Steven Silverberg

On Monday the Second Circuit Court of Appeals reinstated an action by eight states, the City of New York and three land trusts challenging the levels of carbon dioxide emissions by coal burning power plants under a theory of nuisance. In State of Connecticut v. American Electric Power Company, Inc. the plaintiffs claim that the carbon dioxide emissions from these coal burning plants contribute to global warming and should be ultimately reduced.

The basis for the claims was stated by the Court as:

"Plaintiffs claim that global warming, to which Defendants contribute as the “five largest emitters of carbon dioxide in the United States and . . . among the largest in the world,” Connecticut v. Am. Elec. Power Co., 406 F. Supp. 2d 265, 268 (S.D.N.Y.2005), by emitting 650 million tons per year of carbon dioxide, is causing and will continue to cause serious harms affecting human health and natural resources. They explain that carbon dioxide acts as a greenhouse gas that traps heat in the earth’s atmosphere, and that as a result of this trapped heat, the earth’s temperature has risen over the years and will continue to rise in the future."

Reversing the lower court the Circuit Court found:

" We hold that: (1) Plaintiffs-Appellants’claims do not present non-justiciable political questions; (2) Plaintiffs-Appellants have standing to bring their claims; (3) Plaintiffs-Appellants state claims under the federal common law of nuisance; (4) Plaintiffs-Appellants’ claims are not displaced; and (5) the discretionary function exception does not provide Defendant-Appellee Tennessee Valley Authority with immunity from suit. Accordingly, we VACATE the judgment of the district court and REMAND for further proceedings."

New York’s Appellate Division (Fourth Department) issued a decision in early February, 2009 upholding a denial by the Town of Ellicottville of site plan and special permit approval to construct a cogeneration plant using wood chips as fuel, as part of a larger development proposal. In Matter of Laidlaw Energy and Environmental Inc. v Town of Ellicottville, the court found that the conclusion contained in the New York State Environmental Quality Review Act (SEQRA) findings that "serious increases in harmful emissions" from the plant would result in an "unacceptable adverse impact" was not arbitrary and should be upheld.

In what appears to be one of, if not, the first decision in New York to deny a land use approval due to concern over carbon emissions, the court has found that this is a proper consideration under SEQRA. Unfortunately, the decision goes into little detail about the findings or the issues posed. However, thanks to Daniel Spitzer, Esq. the partner at Hodgson Russ LLP, who successfully defended the decision, we were able to obtain a copy of the Town’s detailed SEQRA findings.

The findings focused on a number of issues but Greenhouse Gases (GHGs) and Carbon Dioxide were a focus in the analysis of the cogeneration plant, noting in part: “the issue of carbon neutrality is far more complicated, and while biomass plants can be carbon neutral, the Laidlaw proposal is neither carbon neutral when viewed locally or regionally, because the Laidlaw proposal is not coupled with a sustainable agricultural management program….Laidlaw is not planting new trees to take up the carbon. It is burning the dead or trimmed mature trees, meaning the fuel source will not absorb the carbon released in equal portions.” The findings also discuss attempts to have Laidlaw put together a sustainable agricultural management program in conjunction with the plant and the refusal of Laidlaw to implement such a plan.

The findings also reviewed related impacts: “proponents for sustainable biomass plants note the importance of local fuel sources. Here, where the travel routes are up to 100 miles, the carbon dioxide released by the transporting trucks unbalances the equation, even if the facility were otherwise carbon neutral. Conservatively estimating that each truckload will come from an average distance of 50 miles away, it is expected each truck delivering chips will travel 100 miles roundtrip per delivery. Using an average fuel economy of 5 miles per gallon of diesel fuel, each delivery of chips would require the burning of 20 gallons of diesel fuel. Based on EPA estimates. Some of this will occur in Ellicottville, and all will occur in the region. Thus, Laidlaw’s project is not carbon neutral on a regional level, and because it will concentrate in Ellicottville carbon sequestered over a large area, it is not neutral on a local level.”

After noting the other potential impacts of the proposal the Town concluded that other aspects of the project could move forward, subject to conditions, but “[a]s to the new biomass plant, the Planning Board has reviewed the Alternatives discussed in the DEIS, and additional comments in the FEIS, and, for the most part believes that Laidlaw is correct, that size, technology or other alternatives are unfeasible. The exception is the No Action Alternative, which the Town believes is the required route for the biomass plant based on the record….The proposed Biomass Cogeneration Facility will have unavoidable adverse impacts on the community at unacceptable levels; is inconsistent with and will have a negative impact on the neighborhood character; presents a use inconsistent with the goals of the community as stated in the Town Comprehensive Plan and Zoning Ordinance; will create unacceptable noise levels; and significant air pollution emissions; all of which are significant, unmitigable environmental detriments; and therefore, for each of these reasons individually and collectively, as well as the others stated in this Statement of Findings and Decision, the Site Plan is denied.”

In a challenge to attempts by several north Texas cities to address climate change issues, cement manufacturer Ash Grove LLP has brought an action in the U.S. District Court for the Northern District of Texas. The lawsuit, which was filed on November 26, 2008, alleges that the local resolutions, favoring purchasing cement which is produced through a process which releases less pollution, violates both Texas contract bidding requirements and the constitutional rights of Ash Grove LLP.

According to the Dallas Morning News, Ash Grove is the only one of several cement manufacturers in the area which does not operate any “dry process kiln” for the manufacturing of cement, which is claimed to release less pollution. The attorneys for Ash Grove maintain that the resolutions adopted by Dallas, Plano, Arlington and Fort Worth “stifled competition.”

The potential impact of this suit on attempts by local governments to regulate purchasing in a manner which considers the effects of manufacturing processes on global warming are not yet clear.