NCRCR Interview Series: Connecticut v. American Electric Power

Welcome to the National Campaign to Restore Civil Rights Interview Series, a regular examination of the court cases that shape and affect our lives.

In 2004, eight states, the city of New York and other parties brought a lawsuit seeking to force six electric companies operating fossil fuel power plants in 20 states to reduce their carbon dioxide emissions.  The case, known as Connecticut v. American Electric Power was dismissed by a federal district court, which held that the issues at stake were political, to be resolved by the legislature, and not by the judiciary.  Upon appeal however, a panel of judges reversed the lower court, allowing the case to go forward.  To better understand this case we spoke with Bruce Myers, Senior Attorney at the Environmental Law Institute.

PERRY: What is the Connecticut v. American Electric Power case about?

MYERS: Well, at bottom I think this case is really about plaintiffs who were looking to invoke the jurisdiction of the federal courts to seek protection from the consequences of global warming.  And… two really interesting points that I think you can seize on right at the outset, both about the plaintiffs themselves and about the kind of relief that they’re going after.  First is, I think you said at the beginning, the plaintiffs include various states and New York City, but they are also three nonprofit land trusts, and this is a pretty big deal because recent Supreme Court precedent makes clear that the state governments in some circumstances have standing to be heard in federal court on global warming claims.  But whether federal courts can hear private parties on these claims has been more of an open question and certainly has not been one that has reached the Supreme Court.  And second, as to the relief, this case is important because the plaintiffs here are not looking for a payday, they want injunctive relief, they want an abatement of the defendants alleged public nuisance of contributing to climate change.  And a public nuisance is simply an unreasonable interference with the right common to the general public.  And here for example the states are saying that the defendant’s emissions of greenhouse gasses, like carbon dioxide contributed to global warming, and thereby substantially interfered with their rights to public comfort and safety, protection of natural resources and public property, preservation of ecological values, etc.  So in a way this case is really about a back to basics approach to environmental law, which ultimately had its roots in the common law of nuisance.

PERRY: Great.  What impact do these power plants have on the environment?

MYERS: Well, it’s an interesting question and I think since this case is at a motion to dismiss stage, that is, we haven’t gotten to the merits, I think I should be a good lawyer and simply tell you what the plaintiffs allege, because the court had to accept these allegations as true.  So the plaintiffs come in and say that the defendants, and essentially the power industry here contributed to global warming, as the largest emitters of CO2 in 3the United States, really among the largest in the world, and carbon dioxide is of course a greenhouse gas that traps heat in the earth’s atmosphere causing global temperatures to rise, and you have resulting injuries on the environment, that are both with us now and that are expected to magnify in the future…and just to name a handful, you have California snowpack, which is a critical source of drinking water, being reduced, beach erosion occurring, sea level rise that is expected to flood coastal lands and wipe out marshlands.  We’ll see wildfires, which particularly in California, where they’re already a plague, they’re a major concern, disruption of natural ecosystems, which is bad for our hardwood forests and bad for biological diversity, I mean this is pretty nasty stuff.  Now, but I do want to make a caddy out, which is, that power plant employees are not out there melting the snowpack, rather, the power plants are emitting gasses and a process is taking place that’s driving global warming.  And this is all based in findings of bodies, scientific bodies, such as the Intergovernmental Panel on Climate Change, National Academies of Science, etc.  So even though it’s just allegations, it is grounded in science.

PERRY: What impacts do the power plants have on human health?

MYERS: Well again, if we just focus only on the plaintiff’s allegations I think you’re looking at global warming injuries of increased illness and death resulting from prolonged heat waves, increases in smog with all the respiratory illness that comes along with that, plus I think the self-evident human consequences that come with sea level rise, intensified storms, droughts, flooding, possible salinization of water supplies from coastal flooding etc.

PERRY: So why does this case matter?

MYERS: Well, I would say that it matters for at least several important reasons.  First, every climate court case of this sort that had been brought in federal court up until now has failed at the district court level.  The track record was 0-4 before the lower courts, and now with Connecticut vs. AEP and with another case Comer v. Murphy that will perhaps talk about…the plaintiffs are actually 2-0 at the appeals court level, so the tide could be turning in that sense, making this case an important milepost.  But it’s important not just for the results, but also for what the opinion says and…for who wrote it.  The lower court most importantly here had said no, the case raises political questions, it calls on the judiciary to make policy determinations of a kind that are just simply not judicial.  These are questions, big questions about greenhouse gas emission and how we tap it and who should pay and what cost--questions that are just better left to the legislature, better left to the executive branch.  So the lower court had said no, we don’t hear these cases.  But now, in Connecticut v. AEP, you have the Court of Appeals saying no, federal common law, federal court law, this is all about filling the regulatory gaps and at bottom this is a nuisance case, this is what we do, this is what the judiciary does, this is our job, and so let’s do it.  And also, and this may be very important for some of your listeners, the court finds that all of the plaintiffs in the case, governmental and non-governmental have constitutional standing to be heard, and this is just a great result for citizen access to the courts.  And as you probably know, much of the law Article 3 standing affecting all federal rights plaintiffs has really been shaped in the context of environmental litigation.  And just briefly, and finally to answer your question, I mentioned it was a big deal to take a look at who rules here.  We have a lengthy, quite lengthy, thoughtful opinion from a court of appeals that’s very respected, in the 2nd Circuit, by a panel of judges, both of whom were appointed by Republican presidents.  You may recall, a kind of interesting side note, that the third member of this particular panel Sonia Sotomayor was actually elevated to the Supreme Court before the case was decided.  So at the end of the day this is a ruling, whatever you think about it, this is a ruling that pretty much every other court is going to have to take seriously.

PERRY: You mentioned a recent ruling in the 5th Circuit that touches on these issues as well, what was the Comer v. Murphy Oil U.S.A. case about?

MYERS: Well, on the heels of the 2nd Circuits ruling in Connecticut v. AEP here, came the 5th Circuits decision in Comer and that was a case where residents and property owners living along the Gulf Coast sued a similar set of defendants, energy, fuel, chemical companies in diversity, for damages under Mississippi Common Law.  So there we’re talking about state common law, as opposed to federal common law in Connecticut, but it’s still being heard in federal court.  The principals are largely the same.  And they claimed there that the defendants greenhouse gas emissions exacerbated climate change, as here, but then they went on to say in there case, in Comer, that sea level rise occurred and storm severity increased, and all of this led to Hurricane Katrina more severely damaging their property than what otherwise had happened absent climate change.  So in a sense they’re adding sort of an extra step to the causal chain.  Now again as I sort of had hinted before, the trial court in that case predictably threw out the case saying, “nope, it’s a political, we don’t do that.”  But the 5th Circuit came back and said no and reinstated the case, and said in fact, no political question here, and the private parties in this case do have constitutional standing to sue.  So now, the traditionally conservative 5th Circuit has joined the 2nd Circuit in sweeping away at least the constitutional hurdles to having these kinds of cases heard in federal court.

PERRY: What really can the courts do about climate change?

MYERS: Well…if the courts determine that plaintiffs here, or in other similar cases, can successfully prove up a nuisance case against greenhouse gas emitters, you may see injunctions and/or damages rulings that force industry, and probably much more importantly, force policy makers to think seriously about comprehensive solutions to the problem of climate change.  So that’s what they can do.  But you know, I would add there that I think it’s a mistake to see this case and similar ones as simply prods to get a federal climate law, a cap and trade bill or to get EPA to regulate.  At bottom these cases really are about injured parties getting their day in court, so you can look at it both ways

PERRY: What impacts are these cases expected to have going forward?

MYERS: Well certainly that remains to be seen, I think they jury’s still out on what these cases will mean, but at a minimum what they say is that the 3rd branch of the federal government, at least for the moment, has come to the table for this issue.

PERRY: Great, thank you very much for speaking with us today.

MYERS: It’s my pleasure.

PERRY: That was Bruce Myers, Senior Attorney at the Environmental Law Institute.

The National Campaign to Restore Civil Rights is a collection of more than 100 organizations and numerous individuals who came together to ensure the courts protect and preserve justice, fairness, and opportunity for everyone.  The Campaign focuses on public education and outreach, finding ways to get the message out about the impact of court rulings on our communities, our opportunities, and our rights.