Climate Change: The Next Legal Frontier

Imagine what would happen if people got together and sued industry companies for their greehouse gas emissions. Sounds pretty crazy, right? Believe it or not, that's exactly what has happened in Connecticut v. American Power Co., a controversial case in which a coalition of states and conservation groups has accused six electric power companies of causing a public nuisance with their emissions. The case was first brought to trial in 2004, with the plaintiffs arguing that the power companies were contributing to global warming and undermining public well-being with pollution from their coal-fired plants. The utilities have countered by arguing that the courts have no jurisdiction over an issue which should be discussed by the executive and legislative branches (an argument called the political question doctrine).


The political question doctrine defense worked so well for the utilities that in 2005 a New York district court judge dismissed the case. But although the battle may have been won the war was far from over: in 2009 the US Court of Appeals for the 2nd Circuit reversed the district court's decision by reasoning that the plaintiffs were not trying to formulate a far-reaching solution to global climate change (a task rightfully belonging to Congress and the President). All they wanted was to curb the emissions from six utilities companies which were clearly causing a public nuisance with their dirty emissions. The case now awaits the attention of the Supreme Court, if they choose to take it up.


Although Connecticut v. American Electric Power Co., has taken an exceptional step in successfully suing power companies for the damage their emissions are doing to public well-being, it is actually the continuation of a long history of environmental advocates circumventing a stalled or recalcitrant legislative system through the "back door" of law-making: the courts. For years the rules and regulations governing the administration of natural resources and the protection of endangered animals and plants have been hammered out in pitched legal battles (a process known by Robert Kagan and his devoted followers in POL1 200 as "adversarial legalism"). Connecticut v. American Electric Power Co. is the first time that a court has extended its jurisdiction over the intricate technical issues associated with addressing climate change, effectively signaling a vote of no confidence in the ability of the other two branches to do something about it. President Obama responded in August by asking the Supreme Court to dismiss the case, arguing that since emissions are already adequately regulated by the EPA there is no need for the judiciary to stick its oar in.


It remains to be seen what the Supreme Court will do. Will it grant the judiciary the right to regulate greenhouse gas emissions, opening the door for a flurry of similar lawsuits against polluters? Or will it place the issue one-and-for-all under the aegis of Congress and the President, returning to the familiar lobbying and interest group routine? No matter what its decision, it will be a momentous one which will shape the strategy of activists on all sides.