The Second Circuit announced an important decision today that allowed several states and land trusts to continue their nuisance claim against various U.S. utilities over their release of carbon dioxide emissions, which contribute to climate change. From Reuters:

A U.S. Appeals Court reinstated on Monday a 2004 lawsuit by eight states and the city of New York against five of the largest U.S. utilities over their carbon dioxide emissions.

The lawsuit was dismissed in October 2005 by U.S. District Court Judge Loretta Preska, who said the issue was a political question for Congress or the President, not the judiciary.

Monday’s ruling by the U.S. Court of Appeals for the 2nd Circuit in New York said the judge “erred in dismissing two complaints on the ground that they presented non-justiciable political questions.”

The lawsuit against American Electric Power Co Inc, Southern Co, Xcel Energy Inc, Cinergy Corp and the Tennessee Valley Authority public power system, argued that greenhouse gas emissions from their plants were a public nuisance and would cause irreparable harm to property.

The utilities are five of the largest carbon dioxide emitters in the United States. Around 40 percent of U.S. carbon dioxide emissions come from fossil-fueled power plants.

The plaintiffs aren’t seeking money damages but injunctive relief. More on the plaintiff’s claims from Courthouse News Service:

Carbon dioxide acts as a greenhouse gas that traps heat in the earth’s atmosphere, causing the earth’s temperature to rise, the plaintiffs claimed. They asked the court to force the power companies to cap and then decrease emissions, warning that the earth’s temperature “will accelerate over the coming decades unless action is taken to reduce emissions of carbon dioxide.”

They filed suit under federal nuisance law or, alternatively, state nuisance law. The district court dismissed their actions as barred by the political question doctrine, explaining that the issue of global warming is best left to the political branches of government to resolve.

The plaintiffs launched a multipronged appeal, claiming that their cases aren’t barred by the political question doctrine; they have standing to sue; their federal nuisance claim was properly pleaded; and the Clean Air Act doesn’t displace that claim.

The power companies argued the opposite on each of these points and urged the Manhattan-based appeals court to back the lower court’s decision.

In a 139-page opinion, the court found that all of the plaintiffs have standing to challenge the alleged contributions to global warming, which the court characterized as “interference with a public right in protecting natural resources.”

And although the Clean Air Act addresses pollution and global climate change, the court ruled, the Environmental Protection Agency “does not currently regulate carbon dioxide under the (Act) – at least not in the sense that EPA requires control of such emissions at this time.” In other words, the EPA has only proposed regulation; it hasn’t imposed it.

Without specific regulation, the Clean Air Act and other federal laws “touching on” global warming don’t prevent the plaintiffs from suing under federal nuisance laws, the court concluded.

The judges also rejected the power companies’ claim that the lawsuit would undermine the nation’s global climate-change strategy. This claim “simply reiterates their political question argument and must be rejected for similar reasons,” Judge Hall wrote.

Finally, the court determined that the Tennessee Valley Authority isn’t immune from suit based on its status as a federally chartered agency.

“The flaw in TVA’s … argument is that TVA is not the United States or Congress,” Hall wrote, noting that the TVA has sided against the government “in a number of cases.”

The Second Circuit stressed that they’re not being asked to solve the problem of global warming where government has failed. From The Australian:

“A decision by a single federal court concerning a common law of nuisance cause of action, brought by domestic plaintiffs against domestic companies, does not establish a national or international emissions policy,” US Circuit Judge Peter W. Hall wrote.

“Nor could a court set across-the-board domestic emissions standards or require any unilateral, mandatory emissions reductions over entities not party to the suit.”

The cases were seeking to limit and ultimately reduce carbon emissions at six domestic coal-fired electricity plants, rather than ask the court to “fashion a comprehensive and far-reaching solution to global climate change,” Judge Hall wrote.

US District Judge Loretta Preska in Manhattan dismissed the cases in 2005, saying the question of whether carbon-dioxide emissions should be reduced laid with Congress, not the courts.

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Connecticut Attorney General Richard Blumenthal said: “This ruling restoring our legal action breathes new life into our fight against greenhouse gas polluters and changes the legal landscape to impose responsibility where it belongs.

“Our legal fight is against power companies that emit a huge share of our nation’s CO2 contamination, but it will set a precedent for all who threaten our planet with such pernicious pollution.”

New York Attorney General Andrew Cuomo said, “This is a game-changing decision for New York and other states, reaffirming our right to take direct action against global warming pollution from power plants.

“Today’s decision allows us to press this crucial case forward and address the dangers posed by these coal-burning power plants. My office will continue to be a leader in the fight to tackle the risks global warming poses to our environment, public health and economy.”

The cases were remanded to Judge Preska for further proceedings.

New US Supreme Court Justice Sonia Sotomayor was on the three-judge panel that heard arguments in the case in 2006. However, Justice Sotomayor wasn’t involved in the decision as a result of her elevation to the high court.

Representatives at AEP, Southern, Xcel and Duke said employees at their companies were still reviewing the decision and wouldn’t comment until they had had a chance to read the entire 139-page document.

A TVA spokeswoman said TVA had just received the decision and will review it in its entirety.

Another global warming case is a much watch. In Native Village of Kivalina v. Exxon Mobil, et al., a nusiance action was brought by an Alaskan village against oil companies. The villagers are seeking monitary damages.  According to Wikipedia, Native Village of Kivalina v. Exxon Mobil is “the first is to recover ‘monetary damages for defendants’ past and ongoing contributions to global warming’; the second, to recover ‘damages caused by certain defendants’ acts in furthering a conspiracy to suppress the awareness of the link between these emissions and global warming.’” More from National Underwriter Property And Casualty Insurance News:

Still, the Anderson Kill panel noted that one case worth watching is Native Village of Kivalina v. Exxon Mobil, et al., in which an Inuit village in Alaska has brought a nuisance suit in February 2008 against major oil companies.

The plaintiffs are seeking joint and several liability for nuisance and civil conspiracy, claiming that the oil companies’ contribution to global warming has caused melting ice which will lead to the eventual flooding of their village.

The case was brought in California. John Nevius, a shareholder in the New York office of Anderson Kill, said a motion to dismiss was filed in June 2008 in Virginia. He said the insurance company defending the suit has cited the pollution exclusion in its motion.

You can read the Second Circuit’s decision here.

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