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Indiana Opposes Nuisance Liability for Greenhouse Gases Emissions

On September 3, 2010, the State of Indiana, joined by 11 other states, filed a brief with the U.S. Supreme Court asking it to overturn a recent decision by a federal appeals court which held that five large electric utility companies could be liable for their greenhouse gas emissions.  (See, American Electric Power Co. v. Connecticut, U.S., No. 10-174, amicus brief filed on September 3, 2010.) The underlying case was filed by eight states and New York City against the electric utilities and alleged that emissions of carbon dioxide (CO2) from the utilities constituted a public nuisance.  (See, Connecticut v. American Electric Power Co., 582 F.3d 309 (2d Cir. 2009).) 

The plaintiffs sought a court order which would require an immediate cap on the CO2 emissions and further reductions over the next ten years.  The compliant alleged that emissions of greenhouse gases by the electric utilities have caused or will cause harm (increased illnesses and deaths caused by intensified heat waves; increased smog; beach erosion; flooding of coastal areas due to sea level rise, etc.) to the plaintiff states. The Court of Appeals for the Second Circuit allowed the case to proceed – reversing the trial court’s decision to dismiss the case holding that regulation of greenhouse gases was a political question better left to legislators rather than judges. 

Indiana and the other joining states filed the brief in support of the power companies on the grounds that the “states have an especially strong interest in this case because, as utility owners, power plant operators and generally significant CO2 emitters…, they may be future defendants in such actions.”  The states also allege that the lawsuit against the power companies threatens the states’ environmental regulatory scheme.  The brief argues that each of the power companies operates pursuant to a state-issued air permit and that a court’s ruling that would enable another state to seek common-law injunctions would “undermine the entire state-federal regulatory scheme.”  The brief argues that the Supreme Court must dismiss the lawsuit based upon the “political question doctrine” which precludes a court from deciding issues that involve profound political questions.  The brief states, “[g]iven that every industry, and indeed every living mammal, constantly emits CO2, such emissions cannot be simply banned outright, no matter what the harm to the environment.  Someone has to make a policy determination as to how much is acceptable and how much is too much.”  That question, the brief argues, cannot be decided on a discernible, judicially manageable principle and must be left to the legislative branch which is tasked with resolving these types of political questions. 

The Second Circuit’s decision is at odds with a Fourth Circuit decision from July of 2010 which held that plaintiffs could not bring a nuisance action against the Tennessee Valley Authority to address activities that are expressly permitted and extensively regulated under the Clean Air Act.  While not specifically addressing greenhouse gases emissions, this decision shows another circuit’s reluctance to hold companies liable where the legislative branch has already decided what amount of emissions are acceptable.  Similar cases will likely arise unless the Supreme Court addresses the issue.  In the meantime, the U.S. EPA is encountering an increasing number of legal challenges as it continues its march toward regulating greenhouse gases.  The U.S. EPA has issued four rulemakings which together will require permits for emissions of greenhouse gases as early as January 2, 2011. 

At last count, over 75 legal challenges had been filed seeking judicial review of these four U.S. EPA rulemakings. Additionally, Congress – the forum that Indiana and the other states joining in its brief in AEP believe should be deciding the fate of greenhouse gas regulations – is considering several measures aimed at preventing or delaying the U.S. EPA’s regulation of greenhouse gases.

To learn more about Andy Bowman and his practice, please visit his profile.

  • Partner

    Andy has provided environmental legal services to industrial, commercial and governmental clients for over 30 years. Andy's practice is concentrated in environmental law. He assists clients with permitting, remediation ...



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