An important decision on climate change occurred Monday, but it didn’t happen at COP16 in Cancun, Mexico. Instead, it happened at One First Street in Washington, D.C., at the United States Supreme Court. On Monday, the Court granted certiorari in the case of Connecticut v. American Electric Power, meaning that they will hear and decide the case. This decision will likely have huge effects on domestic action on climate change.
The case itself, at least in theory, seems simple. The plaintiffs of the case are Connecticut, seven other states, the city of New York, and three large land trusts, which are holders of property for conservation. The defendants are American Electric Power and four other large power companies in the United States, including Minnesota’s own Xcel Energy. The plaintiffs argue that by emitting greenhouse gases, the defendants are creating a public nuisance that causes damage to their property. Collectively, the defendants emit roughly 650 million tons of carbon dioxide into the atmosphere, accounting for about a quarter of U.S. power plant emissions, and ten percent of the total U.S. emissions.
At this stage of the litigation, the defendants are not arguing that they do not emit carbon dioxide or even that their emissions do not cause climate change or the detrimental effects to the plaintiffs. Instead, they argue that two legal doctrines dictate that courts cannot resolve the dispute.
The first of these doctrines is the non-justiciable political question doctrine. This doctrine holds courts cannot rule on cases if the dispute is one that would be better resolved by—or must be resolved by—the political branches of the government. The second doctrine is standing. Generally stated, this is the idea that there must be a connection between the damage claimed by the plaintiff and the actions of the defendant that caused the damage.
The court that initially heard the case decided that it presented a non-justiciable political question, and dismissed the case. The plaintiffs appealed to the Second Circuit. A three judge panel heard the case and eventually issued a lengthy opinion that held that the case did not present a non-justiciable political question. The appellate court opinion further held, anticipating the next challenge of the defendants, that the plaintiffs did have standing to assert their claims. Having decided these issues, the appellate court sent the case back to the district court to hear the merits of the plaintiffs’ case-in essence, to have a trial on whether the power company defendants were causing climate change.
In order to avoid that result, the defendants appealed to the Supreme Court, which has now decided to hear the case.
It is important to note the make-up of the Supreme Court and the Second Circuit panel that decided the case. One of the three judges on the Second Circuit panel was then-Judge, now-Justice Sonia Sotomayor. Justice Sotomayor did not join the opinion of the Second Circuit panel, but she did hear the case. As a result, she likely participated in the decision-making process for the case and therefore recused herself from the decision of the Supreme Court to take the case. Having done that, Justice Sotomayor will certainly also recuse herself from the decision of the Court on the merits of the case.
Without Justice Sotomayor, only eight Justices of the Supreme Court will decide the case. This presents the possibility that the Justices could split evenly, with four on each side of the decision. In the event an even split of the court, the Second Circuit’s decision will control in this case, but will not be seen as binding courts deciding this issue in the future. That is important because there are two other similar cases in federal courts, Kivalina v. ExxonMobil and Comer v. Murphy Oil USA. The plaintiffs in each of these cases claim that large corporations and their products are responsible for climate change and its detrimental effects.
It is also possible that the Court could vote five to three against the plaintiffs, though it is unlikely that the Court would vote five to three in favor of the plaintiffs. This is because four Justices—Chief Justice Roberts and Justices Scalia, Thomas and Alito—voted against a group of states and organizations attempting to force action on climate change in the 2007 case Massachusetts v. EPA. These Justices are virtually certain to take a similar position in the Connecticut case. Justice Kennedy, who voted for the state plaintiffs in the Massachusetts case, is the swing vote and would be the likely fifth vote if the Court decided against the state plaintiffs. There will be an answer to this by July, when the Court’s term ends and all opinions will have been issued.
No matter the decision by the Court, this case is likely to have big implications for climate change policy in the United States. If the Court decides against the state plaintiffs, corporations will be largely immune from civil liability for their emissions. Without the threat of liability, corporate emitters will be content with the federal government’s failure to take action on climate change. If the Court decides for the plaintiffs, corporations will be encouraged to pressure the federal government to enact legislation on climate change in order to preclude courts from taking action.
Ultimately, it is unlikely that this case will ever actually go through trial with a court fashioning a remedy. Even if that does happen, the corporate defendants will ensure it is tied up in appeals for a number of years. However, putting pressure on industry to take action, even if it is biased towards them, may be the best possible outcome. Litigation can force them into the discussion, where their economic futures will hang in the balance of the legislative decision. Alternatively, these corporations may also try to reach a settlement with the plaintiffs by offering to reduce their emissions or take other remediative action in exchange for a release from liability.
Like any litigation, no outcome is sure. Particularly in cases that rely on unusual theories of liability, the Court’s decision is difficult to predict. Prediction is further complicated by the unusual circumstances of an even number of Justices to hear and decide this case. If, however, the plaintiffs can achieve a favorable result, they will control the sword of Damocles, with the power to encourage action as a result.
|State Senator Ellen Anderson, Representative Kate Knuth and a delegation of University of Minnesota students are attending the COP 16 conference in Cancun, and students will share the experience with TC Daily Planet readers through blog post from the conference.|