Connecticut v. American Elec. Power Co.

Connecticut v. American Elec. Power Co., 406 F.Supp.2d 265 (S.D.N.Y. 2005).

Eight states, the City of New York, and citizens’ groups filed a suit against the five largest greenhouse gas-emitting power plants under claims of state and federal common law public nuisance due to the companies’ contributions to climate change.  The plaintiffs sought (1) joint and several liability against the defendants for contributing to a public nuisance, more specifically climate change, and (2) an injunction to prevent the defendants from releasing emissions at current levels.  

The defendants moved to dismiss the case based on the plaintiffs’ failure to state a claim upon which relief could be granted.  The motion to dismiss was based on a lack of a federal common law cause of action to abate greenhouse gases, separation of powers principles, and the displacement of federal common law due to Congressional action.  The defendants also claimed the court lacked jurisdiction due to a lack of standing of the plaintiffs to sue on account of global warming and a failure to state a federal claim that would allow for federal question jurisdiction.

The court interpreted the defendants’ separation of powers argument as an argument that the plaintiffs raised non-justiciable political questions that are beyond the Court’s jurisdiction.  The court addressed this issue by applying Baker v. Carr, 369 U.S. 196 (1962) and its progeny.  When deciding separation of powers issues, Baker states a court must determine “whether the duty asserted can be judicially determined, and whether protection for the right asserted can be judicially molded.”   The court then recalled six situations wherein courts have found that existence of a non-justiciable political question.  While the court stated “several of these indicia have formed the basis” of the decision, the court found that the “impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion” to be the most significant factor.  The court then determined that the plaintiffs’ case would require the court to identify and balance economic, environmental, foreign policy, and national security interests which would amount to an initial policy determination outside of the court’s jurisdiction.  Accordingly, the court granted the defendants’ motion to dismiss.

An appeal is pending before the Second Circuit as docket No. 05-5104.  Oral argument was heard June 7, 2006.


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