Download here - Why Mercer Law?

Global Warming: Public Nuisance or Political Question?
A Case Study: Connecticut v. American Electric Power
On one of those hot days in the first two weeks of August, a day when the
temperature hovers between 86 and 104 degrees, we might suffer through the brutal heat
while the sun is up, especially if we live in a city where even August is almost always
moderate. We will suffer through such a sweltering day, but we know that at the end of
the day, when that blazing sun goes down, we can go outside to our stoop, or our porch,
or just carry a chair down to the street, and cool off in the mild evening air. Our bodies,
in stress during extreme heat, will replenish and renew in the cool of the evening. Our
bodies – and our cultures – have gotten used to this natural and ancient pattern of hot
days, when they come, followed by lovely, cool evenings.
But in France, in the first two weeks of August 2003, something unheard of
happened. What began as an unusually warm month, welcomed by the French for the
good beach and park weather, became an extreme and toxic weather event.1 The first two
weeks of August were the hottest period since 1950, if not for more than a century, and
the most dramatic, and it followed a six month period of drought. It lasted for two weeks
and it happened all over the country, including mountains and coastal regions.
Temperatures were the highest ever registered in many parts of France. And the night
temperatures remained persistently high. No one got to enjoy those long cool evenings,
and vulnerable populations suffered terribly as a result.
The tragic health impacts that resulted? 15,000 deaths. And with the heat came
drought, pollution, and large-scale fires. Scientists consider this unique heat wave to be
consistent with climate change projections and they expect more heat waves like this in
the next few years or decades. They have observed the significant increase in the
1
frequency of extreme weather events all around the globe, and they consider the extreme
August 2003 heat-wave a signal of actual climate change. Similarly, scientists attribute
the unprecedented intensity of the last hurricane seasons, including Hurricanes Katrina
and Rita, to be the result of greenhouse-gas induced warming oceans.2
For ten years there has been an international scientific consensus that human
activity – largely the emission of greenhouse gases, such as carbon dioxide, in the
combustion of fossil fuels for the generation of electricity or to power motor vehicles –
bears the blame for this accelerated global warming trend.3 And this consensus extends
to the view that, as the heads of eleven national academies of science – including the
American – warned in July 2005: “Failure to implement significant reductions in net
greenhouse gas emissions now, will make the job much harder in the future.”4
I tell you the story of the 2003 French heat wave by way of context, and to convey
the urgency with which environmental advocacy organizations, indigenous communities,
many local and state governmental officials, and others, are exercising their legal
creativity to seek remedies for this building problem or, as writers and scientists have
started to call it, this catastrophe. Litigation remedies are made both more urgent and
more complex by the fact that the U.S. today contributes the greatest proportion of
greenhouse gas emissions in the world, and our global warming activity is growing.
Why do I say it is more urgent? The 2004 United States Department of Energy’s
Energy Information Administration report states that “ [c]arbon dioxide emissions from
the U.S. electric power sector have grown by 27 percent since 1990, while total carbon
dioxide emissions from all energy-related sources have grown by 18 percent.” 5
2
Why do I say it is more complex? The U.S., with roughly six percent of the
world’s people, contributes 29% of the world’s total greenhouse gas emissions. The
industrialized world as a whole contributes approximately 49 % of the world’s total
greenhouse gas emissions, putting the U.S. share at more than half of the total share of all
industrialized nations.6
And “[c]arbon dioxide emissions from the electric power sector represented 39
percent of total U.S. energy-related carbon dioxide emissions in 2004”.7 But the electric
power corporations responsible for emitting greenhouse gases have been industries
regulated by state and federal energy and environmental agencies for over one hundred
years. While their power plant emissions have been strictly regulated at least since the
1970 passage of the Clean Air Act, greenhouse gases have never been considered
pollutants, and these companies’s CO2 emissions are therefore not in violation of any
existing state or federal regulatory standards.
Because of the categorical refusals of Congress and the President to effectively
act on global warming, the initiative has been seized by states, localities, and regions –
sometimes regions acting in concert with Canadian provinces to reduce greenhouse gas
emissions. Advocates and regulators on the local, state, and regional level have
established programs to reduce greenhouse gas emissions locally, in part filling the
vacuum created by the refusal of the federal government to act. These include renewable
portfolio standards, regional greenhouse gas initiatives and emissions trading programs
for CO2, limits on motor vehicle CO2 emissions, and symbolic city-by-city ratification of
the Kyoto Protocol, accompanied by real, if modest, local emission reduction programs.
Litigation strategy in particular, however, is the focus of my lecture today.
3
Local measures are no substitute for federal action given the daunting scale of
global climate change caused by fossil fuel use. So strategy after strategy is being tried
to hold the executive and legislative branches to account in the courts.
One broad grouping of litigation strategies8 has been broached to pressure the
American government to take the kind of effective action that could actually rein in our
overly generous contribution to the world’s greenhouse gas problem.9 Notable among
these strategies is the international litigation: the petition by the Inuit of the American and
Canadian Arctic against the United States at the Inter-American Commission on Human
Rights, claiming that U.S.-perpetrated climate change is destroying their land and culture,
both human rights violations under international law.10
Domestically, litigation is underway, first, to require the EPA to set regulatory
standards for carbon dioxide and other greenhouse gases as air pollutants11 (a petition for
certiorari is pending in that case); second, to defend state measures to follow California’s
example and set greenhouse gas emission limits on motor vehicles;12 third, to invalidate
proposed U.S. Department of Energy regulations weakening energy efficiency standards
for central air conditioners,13 and fourth, to require the Department of Energy to adopt
stricter efficiency standards for appliances pursuant to the Energy Policy and
Conservation Act . All of this litigation is directed at swaying the judiciary to force
executive or legislative action on global warming.
But there is another litigation avenue altogether: strategies directed not at
government decision-makers but at the corporations that actually produce and emit the
greenhouse gases. And in light of the difficulty in forcing federal action through
litigation, these strategies were developed to hold to account private parties: here, the five
4
largest emitters of carbon dioxide in the United States, responsible for the bulk of the
U.S.’s greenhouse gas emissions, and among the largest in the world.
A great deal of attention and debate has focused, nationally and internationally, on
this audacious lawsuit filed in July 2004 in the United States District Court for the
Southern District of New York – a lawsuit that raises legal and environmental questions
of tremendous moment. In looking for liability in the corporate utility corner, attorneys
general in eight states invoked their core traditional authority: the authority to redress
public nuisances damaging the land, health, and livelihood of their states. Under British
common law, “[h]istorically, in criminal law, proceedings could be brought by the
Attorney General acting in his official capacity as the representative of the public
interest”.14
The lawsuit is State of Connecticut v. American Electric Power and the plaintiffs
are the attorneys general of Connecticut, New York, California, Iowa, New Jersey, Rhode
Island, Vermont, and Wisconsin, and the City of New York. The defendants are five
electric power corporations whose power plants emit approximately 650 million tons of
carbon dioxide annually. They are the nation’s five largest emitters of carbon dioxide:
American Electric Power Company, the Southern Company, Tennessee Valley Authority,
XCel Energy Inc., and Cinergy Corporation.15 The attorney general lawsuit was
consolidated with a companion case, Open Space Institute v. American Electric Power,
brought on similar grounds by private environmental organizations that are themselves
substantial landowners, and that claim specific and particular damage to their property as
a result of climate change effects attributable in part to the emissions of the defendants’
power plants. Plaintiffs’ theory is that since carbon dioxide emitted in any part of the
5
world contributes to the global phenomenon of warming, plaintiffs need not demonstrate
local harm from any particular emissions.
In the Attorney General complaint plaintiffs explained in detail the causes of
global warming and its consequences for their states—consequences predicted by
scientists and already being observed. In my state, New York, for example, temperatures
have increased as much as 2 degrees in a century; snowfall has decreased, and thaw
comes earlier. Projected warming for New York threatens increases in heat-related deaths
and our coastline and islands will face sea level rise and extreme coastal storms, flooding,
salinization of tidelands, wetlands and groundwater aquifers, and beach erosion. The
water level in the Great Lakes is likely to decrease, and our beautiful hardwood autumn
colors to be replaced with an Appalachian forest.16
The Attorneys General asserted that defendants could reduce their carbon dioxide
emissions significantly, immediately, and cost-effectively and avert or reduce these risks.
The plaintiffs’ first claim for relief sounds in the federal common law of public nuisance:
defendants, they charged, are liable for creating and maintaining a public nuisance: global
warming. The second claim sounds in state public nuisance, and details the state-by-state
responsibility of particular defendants for specific states’ injuries.
The relief sought is a judgment first, holding each defendant liable for creating
and maintaining a public nuisance, and second, permanently enjoining each defendant to
abate its contribution to this public nuisance by capping its carbon dioxide emissions and
then reducing them by a specified percentage each year for at least a decade.
6
The five corporate defendants, according to the Complaint, emit approximately
one quarter of the carbon dioxide emitted by the U.S. electric power sector and
approximately 10% of all carbon dioxide emitted by human activity in the U.S. The
generation of electricity by burning fossil fuels emits 2.6 billion tons of carbon dioxide
in the U.S. each year; and carbon dioxide emissions from power plants are increasing
(The Department of Energy predicts a 41% increase by 2025). The defendants have
either been in continuous operation as power plants – some for over one hundred years –
or acquired historic power plants.
Defendants moved to dismiss the complaints for, among other things, failure to
state a claim upon which relief can be granted, based on the Congressional displacement
of any federal common law cause of action by the promulgation of the Clean Air Act, and
also based on the somewhat perverse- or at least circular - defense that in light of the vast
scale of the global warming problem, no meaningful mitigation of global warming would
result even if defendants reduced their emissions. The Court granted the defendants’
motion – but not on any of the multitude of grounds urged by defendants.
Observers of this litigation expected that the outcome would likely turn on the
Erie-genre issue of whether a federal common law of air pollution-as-nuisance survived
the passage of the Clean Air Act: the defense, raised and extensively argued in motions to
dismiss by all defendants, that Congress had occupied the field of air pollution regulation
with the comprehensive statutory and regulatory scheme embodied in the Clean Air Act,
leaving no room whatever for any additional common law restrictions on air emissions
clothed as public nuisance suits.
7
District Court Judge Loretta A. Preska, however, ruled on a different ground
altogether, one that had attracted scant attention from the parties. On September 15,
2005, she dismissed the complaints on one ground: the ground that they raised nonjusticiable political questions beyond the limits of the Court’s authority. Specifically, she
identified “the impossibility of deciding [the issues before her] without an initial policy
determination of a kind clearly for nonjudicial discretion”, in other words, a policy
determination made by Congress and the President. Invoking the political question
doctrine, Judge Preska wrote, “[w]hile, at times, some judges have become involved with
the most critical issues affecting America, political questions are not the proper domain
of judges.” The abatement of CO2 pollution was, in all its aspects, relegated to Congress
and the president, and therefore beyond the reach of judicial decision-making.
The judge rejected the plaintiffs’ characterization of their claims as simple
nuisance claims about a cross-border air pollution problem, instead seeing them as
touching on national and international policy and requiring the Court to essentially
become a regulator, a legislator, an executive, and a diplomat: to make energy policy, to
allocate costs, to consider the nation’s energy independence and national security, all the
while balancing the U.S.’s ongoing negotiations with other nations on global climate
change.
In the process, Judge Preska authored a remarkable summary of current federal
policy on global warming. First, she found that Congress, while recognizing the problem
of anthropogenic climate change, “has declined to impose any formal limits” on
greenhouse gas emissions (citing the Global Climate Protection Act of 1987); that
Congress had enacted a series of measures to research, collect data, assess, and cooperate
8
internationally (National Climate Program of 1978);and to model projected impacts of
fossil fuel combustion, especially coal (Energy Security Act). Congress also authorized
international negotiations on climate change in 1987 and again in 1990. These
negotiations resulted in President George H. W. Bush signing, and the Senate ratifying
the United Nations Framework Convention on Climate Change in 1992, a Convention
which included no binding timetables or targets for greenhouse gas reduction. With the
Senate’s “misgivings” about the Kyoto Protocol – which does contain binding timetables
and targets for developed nations – came a series of anti-Kyoto resolutions and bills, the
refusal of the EPA to regulate carbon dioxide as an air pollutant; and the George W. Bush
rejection of any mandatory greenhouse gas reductions as a matter of domestic and
international policy.
Ironically, Judge Preska’s opinion may bolster the Inuit’s argument against the
United States before the Inter-American Human Rights Commission, as it is an
authoritative statement of state action – or perhaps inaction - on global warming, and
state action is a prerequisite for that Commission to exercise its jurisdiction. In addition,
the U.S. energy policy she describes could be interpreted as in violation of our treaty
commitments under Article 4 of the United Nations Framework Convention on Climate
Change.17
Article 4 did include a commitment by developed nation parties “to adopt
national policies and take corresponding measures on the mitigation of climate change,
by limiting its anthropogenic emissions of greenhouse gases and protecting and
enhancing its greenhouse gas sinks and reservoirs.” 18
9
The discourse has now shifted to one of federalism: do states retain the right to
protect their borders from environmental injury to their natural resources, by enforcing
the law of public nuisance? Or does federal policy negate that traditional prerogative?
On appeal, the state attorneys general argue that, faced with injury to a state at the
hands of out-of-state actors, where a statutory remedy is lacking federal courts can and
should adjudicate such controversies. In their view, the authority to seek redress for
public nuisance is fundamental to the quasi-sovereignty of states. This is the
quintessential state remedy: the invocation of the police power of state government to
protect the natural resources, and public health and well-being, from polluters of all
kinds, including those whose depredations stray across the state border.19 This, they
assert, is a foundational principle of federalism, invoking Justice Oliver Wendell Holmes:
When the States by their union made the forcible abatement of outside
nuisances impossible to each, they did not thereby agree to submit to whatever might
be done. They did not renounce the possibility of making reasonable demands on the
ground of their still remaining quasi-sovereign interests; and the alternative to force is
a suit in this court.20
Plaintiffs also vigorously defend the federal common law of nuisance: admittedly
less common in the era of environmental statutory law, it remains an essential part of
American jurisprudence to provide a federal common law remedy absent a statutory one.
Other states have picked up the public nuisance tool. For example, frustrated by the
reluctance of E.P.A. to address cross-border power plant pollution, North Carolina's
attorney general filed suit in January 2006, seeking a declaration by the U.S. District
Court for North Carolina that pollution from 11 power plants owned by the Tennessee
Valley Authority in Alabama, Tennessee and Kentucky were a public nuisance under
common law. The remedy sought is an equitable one: the T.V.A. should be required to
10
retrofit its coal-fired power plants with emissions controls that would prevent sulfur
dioxide, nitrogen oxides and mercury that are claimed to damage North Carolina’s trees,
streams, public health, and national parks. Generally, commentators see a revival in the
use of public nuisance to redress environmental injury outside the statutory scheme. This
development is not only a litigation tactic – it can be seen as raising fundamental
questions about the efficacy of our last thirty five years of environmental positivism.
Absent statutory remedies, litigators find themselves turning to an older authority, one
almost as old as the right to property itself: the principle that it is an offence at common
law to do an act or omit to discharge a legal duty, if the effect of the act or omission is to
endanger the life, health, property, morals or comfort of the public or to obstruct the
public in the exercise or enjoyment of rights common to all her Majesty’s subjects.”
(Coyle 125). And some see a comparable trend in transnational law, the creation of “a
kind of global common law for multinational enterprises”.21
Defendants respond by applauding Judge Preska’s political question holding, and
reassert their challenges to plaintiffs’ standing, the speculative nature of the claimed
future harms, and the impossibility of judicial redress. At bottom, defendants argue that
the Supreme Court has recognized only a narrow federal common law cause of action for
states to abate simple interstate nuisances – in contrast to the sweeping claims of this
lawsuit.
The dismissals are on appeal at the U.S. Court of Appeals for the Second Circuit;
appellants’ reply briefs were due on March 16, 2006, and no argument date has been set
as of today. But regardless of the disposition on appeal, public discussion of the issues
has already been elevated by this litigation – and growing American public awareness of
11
the crisis -- has already has its own effect, outside the courtroom doors. These plaintiffs
have invoked the imperative to force effective federal governmental action. And they
have raised our collective sense of urgency.
Nothing could be more important. In February 2006, NASA Goddard Institute for
Space Studies climate scientist James Hansen assessed: “How long have we got? We
have to stabilize emissions of carbon dioxide within a decade, or temperatures will
warm by more than one degree. That will be warmer than it has been for half a million
years, and many things could become unstoppable. If we are to stop that, we cannot
wait for new technologies like capturing emissions from burning coal. We have to act
with what we have. This decade, that means focusing on energy efficiency and
renewable sources of energy that do not burn carbon. We don't have much time left”.22
Eleanor Stein
Albany, New York
March 2006
12
1
The description of the French heat wave of 2003 is drawn from: Meeting of
experts to develop Guidelines on Heat-Health Warning Systems, Freiburg, 14-16 April,
2004, Bio-climatological aspects of summer 2003 over France, Jean-Claude Cohen, et al.,
Météo France, at http://www.wmo.ch/web/wcp/clips2001/html/HHWS_docs/HeatHealth%20Warning%20Systems.htm.
2
See, for example, Houck, Oliver, Can We Save New Orleans?, 19 TULANE
ENVIRONMENTAL LAW JOURNAL 1, 26-36 (Spring 2006).
3
See, Intergovernmental Panel on Climate Change (IPCC) Second Assessment
Report: Climate Change 1995, available, along with summaries and more recent reports,
at http://www.ipcc.ch/pub/reports.htm.
4
Joint Science Academies’ Statement: Global Response to Climate Change (June
7, 2005), available at http://nationalacademies.org/onpi/06072005.pdf.
http://www.mindfully.org/Air/2005/Joint-Science-Academies7jun2005.htm.
5
Emissions of Greenhouse Gases in the United States 2004, U.S. Department of
Energy Energy Information Administration, DOE/EIA-0573(2004), issued December
2005, xiii. This and other U.S. government reports on domestic and global greenhouse
gas emissions are published by the Department of Energy’s Energy Information
Administration, and are available at http://www.eia.doe.gov.
6
Emissions of Greenhouse Gases in the United States 2003, DOE/EIA0573(2003), 12.
7
Emissions of Greenhouse Gases in the United States 2004, U.S. Department of
Energy Energy Information Administration, DOE/EIA-0573(2004), issued December
2005, xiii.
8
Litigation itself is only one of the forms of legal attack on catastrophic climate
change. Advocates and regulators on the local, state, and regional level have established
programs to reduce greenhouse gas emissions locally, in part filling the vacuum created
by the refusal of the federal government to act. These include renewable portfolio
standards, regional greenhouse gas initiatives and emissions trading programs for CO2,
limits on motor vehicle CO2 emissions, and symbolic city-by-city ratification of the
13
Kyoto Protocol, accompanied by real, if modest, local emission reduction programs.
Litigation strategy in particular, however, is the focus of my lecture today.
9
One of the Administration’s pet arguments against assessing any particular
responsibility to the U.S., within the family of nations, is that China will soon surpass
America as the world’s biggest CO2 purveyor. According to U.S. Department of Energy
data, this country will retain the lead until 2025 and, in any event, although the Chinese
proportion is growing fast, the per capita GHG bill for Chinese remains only 1/8 that of
Americans.
10
The complete Inuit Petition can be referenced at
http://www.ciel.org/Publications/ICC_Petition_7Dec05.pdf.
11
Commonwealth of Massachusetts New York v. U.S. Environmental Protection
Agency, 415 F.3d 50 (D.C. Cir. 2005), rehearing and rehearing en banc denied, 433 F.3d
66 (D.C. Cir. 2005) (hereinafter Massachusetts v. EPA). A petition for certiorari is
pending at the Supreme Court. In this case, 16 states and others sought judicial review of
the EPA decision declining to set regulatory standards for four air pollutants (CO2,
methane, nitrous oxide, and hydrofluorocarbons) emitted by motor vehicles. The EPA
also ruled that these greenhouse gases were not air pollutants under the Clean Air Act
§202(a), and that it lacked authority to regulate these emissions.
12
Automakers’ suits have challenged state action in both New York and
California.
13
See Natural Resources Defense Council, et al v. Abraham and New York et al v.
Bodman, respectively.
14
Sean Coyle and Karen Morrow, THE PHILOSOPHICAL FOUNDATIONS OF
ENVIRONMENTAL LAW: PROPERTY, RIGHTS AND NATURE (Oxford and Portland, OR:
2004), 125.
15
A companion suit, Open Space Institute v. American Electric Power, Inc., No.
05-5119-cv (“Open Space”) was filed by private parties—Open Space Institute and the
Audubon Society of New Hampshire, asserting standing to sue on the ground of injury to
their open space holdings resulting from global warming, rather than on the state attorney
generals’ interest in restraining public nuisance.
16
All references below are to data adduced in the attorney general complaint,
posted in its entirety with this lecture. The complaint summarizes a remarkably detailed
and comprehensive account of global warming causes and effects as of the date of its
filing.
17
United Nations Framework Convention on Climate Change art. 4, May 15,
1992, WL 602544.
18
Id., Article 4 §2(a).
19
Frustrated by the reluctance of E.P.A. to address other cross-border power plant
pollution, North Carolina's attorney general filed suit in January 2006, seeking a
declaration by the U.S. District Court for North Carolina that pollution from 11 power
plants owned by the Tennessee Valley Authority in Alabama, Tennessee and Kentucky
were a public nuisance under common law. The remedy sought is an equitable one: the
T.V.A. should be required to retrofit its coal-fired power plants with emissions controls
that would prevent sulfur dioxide, nitrogen oxides and mercury that are claimed to
14
damage North Carolina’s trees, streams, public health, and national parks (See The New
York Times, March 3, 2006).
20
Georgia v. Tennessee Copper Co., 206 U.S. 230, 237 (1907), Justice Holmes,
writing for the Court.
21
Oren Perez, ECOLOGICAL SENSITIVITY AND GLOBAL LEGAL PLURALISM:
RETHINKING THE TRADE AND ENVIRONMENT CONFLICT (Oxford and Portland, OR: 2004,
191.
22
The Independent, February 2006, at
http://news.independent.co.uk/environment/article345926.ece.
15