Indiana and Ohio joined 10 other states, industry groups, and the Obama Administration to ask the U.S. Supreme Court to reverse a greenhouse gases nuisance ruling in Connecticut v. American Electric Power Company, which allowed states and private plaintiffs to sue coal-fired utilities for contributing to global warming through carbon dioxide emissions.   

The petitioners argued that the U.S. Court of Appeals for the Second Circuit erred in not dismissing the plaintiffs’ underlying public nuisance lawsuit against the utilities on the grounds that the regulation of greenhouse gases, such as carbon dioxide, is a political question best reserved for “politically accountable officials, not life-tenured judges.”  Long standing precedent has held that federal courts lack jurisdiction over political questions, which has its core in the separation of powers between the executive, legislative, and judicial branches of American government. 

The petitioners reasoned that given “every industry, and indeed every living mammal, constantly emits [carbon dioxide], such emissions cannot simply be banned outright,” someone would have “to make a policy determination as to how much is acceptable and how much is too much.”  These decisions, the petitioners argued, are best left for state political branches that have to balance the needs between of economic development and environmental protection. 

In fact, states could be both plaintiffs and defendants in public nuisance suits from carbon dioxide emissions.  Eight states own and operate coal-fired electric utilities that emit carbon dioxide, 24 state-owned universities in 15 states operate campus coal-fired power plants, and four states that are plaintiffs in the underlying lawsuit (California, Iowa, New York, and Wisconsin) are possibly future defendants in other lawsuits because they own utilities or have state universities that operate power plants.  Worse yet, plaintiffs theory is not limited to utilities, but all emitters of carbon dioxide.  To demonstrate how this affects states, Indiana noted that it operates a fleet of approximately 10,000 vehicles (a source of carbon dioxide emissions) and created the heralded “Major Moves” program to build 104 new roadways creating 1,600 lane miles in Indiana by 2015.  It has been estimated that over 50 years, each new highway lane mile could contribute to over 100,000 tons of carbon dioxide emissions. 

If the Supreme Court reverses the Second Circuit decision, public nuisance lawsuits against specific emitters could be prohibited in federal courts. 

For more information on defense of nuisance claims, contact Bill Wagner or any member of Taft’s environmental practice group.