United States District Court, S.D. New York
September 15, 2005.
STATE OF CONNECTICUT, et al., Plaintiffs,
AMERICAN ELECTRIC POWER COMPANY, INC., et al., Defendants. OPEN SPACE INSTITUTE, et al., Plaintiffs, v. AMERICAN ELECTRIC POWER COMPANY, INC., et al., Defendants.
The opinion of the court was delivered by: LORETTA PRESKA, District Judge
OPINION AND ORDER
The Framers based our Constitution on the idea that a
separation of powers enables a system of checks and balances,
allowing our Nation to thrive under a Legislature and Executive
that are accountable to the People, subject to judicial review by
an independent Judiciary. See Federalist Paper No. 47 (1788);
U.S. Const. arts. I, II, III. While, at times, some judges have
become involved with the most critical issues affecting America,
political questions are not the proper domain of judges. See,
e.g., Baker v. Carr, 369 U.S. 186 (1962); Nixon v.
United States, 506 U.S. 224 (1993). Were judges to resolve political
questions, there would be no check on their resolutions because
the Judiciary is not accountable to any other branch or to the
People. Thus, when cases present political questions, "judicial
review would be inconsistent with the Framers' insistence that
our system be one of checks and balances." Nixon,
506 U.S. at 234-35. As set out below, cases presenting political questions
are consigned to the political branches that are accountable to
the People, not to the Judiciary, and the Judiciary is without
power to resolve them. This is one of those cases.
The States of Connecticut, New York, California, Iowa, New
Jersey, Rhode Island, Vermont, and Wisconsin and the City of New
York (the "State Plaintiffs") and the Open Space Institute, Inc.
("OSI"), the Open Space Conservancy, Inc., and the Audubon
Society of New Hampshire (the "Private Plaintiffs")
(collectively, "Plaintiffs") bring the above-captioned actions
against American Electric Power Company, Inc., American Electric
Power Service Corporation (together, "AEP"), the Southern Company
("Southern"), Tennessee Valley Authority ("TVA"), Xcel Energy
Inc. ("Xcel"), and Cinergy Corporation ("Cinergy") (collectively,
"Defendants") under federal common law or, in the alternative, state law, to abate what Plaintiffs describe as the "public
nuisance" of "global warming." State Compl. ¶ 1;*fn2 OSI
Compl. ¶ 1.*fn3 Defendants now move to dismiss the
complaints for, inter alia, lack of jurisdiction and failure to
state a claim upon which relief can be granted. For the reasons
set forth below, Defendants' motions are granted.
The State Plaintiffs, claiming to represent the interests of
more than 77 million people and their related environments,
natural resources, and economies, and the Private Plaintiffs,
non-profit land trusts, bring these federal common law public
nuisance actions to abate what they allege to be Defendants'
contributions to the phenomenon commonly known as global warming.
State Compl. ¶¶ 1, 146; OSI Compl. ¶¶ 1, 92, 103. Plaintiffs
assert that the Defendants collectively emit approximately 650
million tons of carbon dioxide annually, State Compl. ¶ 2; OSI
Compl. ¶ 3, that carbon dioxide is the primary greenhouse gas,
State Compl. ¶ 1; OSI Compl. ¶ 2, and that greenhouse gases trap
atmospheric heat and cause global warming, State Compl. ¶ 1; OSI
Compl. ¶ 2.
As part of their venue allegations, Plaintiffs maintain that
global warming will cause irreparable harm to property in New York State and New York City and that it threatens the
health, safety, and well-being of New York's citizens, residents,
and environment. State Compl. ¶¶ 2, 20, 24, 26, 30, 34, 159; OSI
Compl. ¶¶ 80-88, 93.
According to the complaints, Defendants "are the five largest
emitters of carbon dioxide in the United States" and their
emissions "constitute approximately one quarter of the U.S.
electric power sector's carbon dioxide emissions." State Compl. ¶
98; OSI Compl. ¶ 55. According to the complaints, U.S. electric
power plants are responsible for "ten percent of worldwide carbon
dioxide emissions from human activities." State Compl. ¶ 100; OSI
Compl. ¶ 53.
State Plaintiffs assert that global warming has already
occurred in the form of a documented increase in average
temperatures in the United States of between .74 and 5 degrees
Fahrenheit since 1900, State Compl. ¶¶ 103, 104, and a decline in
snowfall and the duration of snow cover in recent decades, State
Compl. ¶ 105, 106. In addition to what State Plaintiffs say are
these already-documented climate changes, the United States
Environmental Protection Agency (the "EPA") projects an increase
in temperature of approximately 4 to 5 degrees by the year 2100.
State Compl. ¶ 106. Private Plaintiffs assert that the
Intergovernmental Panel on Climate Change projects that the
global average surface air temperature will increase approximately 2.5 to 10.4 degrees Fahrenheit from the year 1990
to 2100. OSI Compl. ¶ 61.
Plaintiffs say the natural processes that remove carbon dioxide
from the atmosphere now are unable to keep pace with the level of
carbon dioxide emissions. State Compl. ¶ 87; OSI Compl. ¶ 51. As
a result, Plaintiffs allege, carbon dioxide levels have increased
approximately 34% since the industrial revolution began, causing
increased temperatures. State Compl. ¶ 88; OSI Compl. ¶ 50.
Plaintiffs further allege that because the planet's natural
systems take hundreds of years to absorb carbon dioxide,
Defendants' past, present, and future emissions will remain in
the atmosphere and contribute to global warming for many decades
and, possibly, centuries. State Compl. ¶ 102; OSI Compl. ¶ 56.
Although Plaintiffs acknowledge that there is some dispute about
the rate and intensity of the process of global climate change,
Plaintiffs say official reports from American and international
scientific bodies demonstrate the clear scientific consensus that
global warming has begun, is altering the natural world, and will
accelerate over the coming decades unless action is taken to
reduce emissions of carbon dioxide. State Compl. ¶¶ 80, 81; OSI
Compl. ¶¶ 44-47.
Congress has recognized that carbon dioxide emissions cause
global warming and that global warming will have severe adverse
impacts in the United States, but it has declined to impose any formal limits on such emissions. See, e.g., The
Global Climate Protection Act of 1987, P.L. 100-204, Title XI, §§
1102-03, reprinted at 15 U.S.C. § 2901 note. However, Congress
and the Executive Branch have taken several steps to better
understand and address the complex issue of global warming. As
early as 1978, Congress established a "national climate program"
to improve understanding of global climate change through
research, data collection, assessments, information
dissemination, and international cooperation. See National
Climate Program Act of 1978, 15 U.S.C. §§ 2901, et seq. Two years
later, in the Energy Security Act, Pub.L. No. 96-294, tit. VII,
§ 711, 94 Stat. 611, 774-75 (1980), Congress directed the Office
of Science and Technology Policy to engage the National Academy
of Sciences in a study of the "projected impact, on the level of
carbon dioxide in the atmosphere, of fossil fuel combustion,
coal-conversion and related synthetic fuels activities"
authorized by the Energy Security Act. In the Global Climate
Protection Act of 1987, Congress directed the Secretary of State
to coordinate U.S. negotiations concerning global climate change.
See 15 U.S.C. § 2901 note; see also id. § 2952(a) (directing
the President and Secretary of State in 1990 to "initiate
discussions" with other nations for agreements on climate
research). In 1990, Congress enacted the Global Change Research Act,
15 U.S.C. §§ 2931-2938, which established a ten-year research
program for global climate issues, id. § 2932, directed the
President to establish a research program to "improve
understanding of global change," id. § 2933, and provided for
scientific assessments every four years that "analyze? current
trends in global change," id. § 2936(3). Congress also
established a program to research agricultural issues related to
global climate change, Pub.L. No. 101-624, tit. XXIV, § 2402,
104 Stat. 4058, 4058-59 (1990), and, two years later, directed
the Secretary of Energy to conduct several assessments related to
greenhouse gases and report to Congress, Energy Policy Act of
1992, Pub.L. No. 102-486, § 1604, 106 Stat. 2776, 3002.
In 1992, as a result of the negotiations authorized by the
Global Climate Protection Act of 1987, President George H.W. Bush
signed, and the Senate ratified, the United Nations Framework
Convention on Climate Change ("UNFCCC"), which brought together a
coalition of countries to work toward a coordinated approach to
address the international issue of global warming. Following
ratification of the UNFCCC, member nations negotiated the Kyoto
Protocol, which called for mandatory reductions in the greenhouse
gas emissions of developed nations. See UNFCCC, Kyoto Protocol
(Dec. 11, 1997). Although President William Jefferson Clinton signed the Kyoto
Protocol, it was not presented to the Senate, which formally
expressed misgivings over the prospect that the potential
economic burdens of carbon dioxide reductions would be shouldered
exclusively by developed nations, such as the United States. S.
Res. 98, 105th Cong. (1997) (resolving by vote of 95-0 to urge
the President not to sign any agreement that would result in
serious harm to the economy or that did not include provisions
regarding the emissions of developing nations). Thereafter,
Congress passed a series of bills that affirmatively barred the
EPA from implementing the Protocol. See Pub.L. No. 105-276,
112 Stat. 2461, 2496 (1998); Pub.L. No. 106-74, 113 Stat. 1047,
1080 (1999); Pub.L. No. 106-377, 114 Stat. 1141, 1441A-41
(2000). The EPA has ruled that the Clean Air Act does not
authorize carbon dioxide regulation. Control of Emissions from
New Highway Vehicles and Engines, 68 Fed. Reg. 52,922 (Sept. 8,
President George W. Bush opposes the Protocol because it
exempts developing nations who are major emitters, fails to
address two major pollutants, and would have a negative economic
impact on the United States. See Transcript, President Bush
Discusses Global Climate Change (Jun. 11, 2001). Instead, the
policy of the current administration "emphasizes international
cooperation and promotes working with other nations to develop an
efficient and coordinated response to global climate change," which the EPA describes as a "prudent," "realistic and effective
long-term approach to the global climate change issue."
68 Fed. Reg. at 52933.
Here, to curtail Defendants' contribution to global warming,
Plaintiffs "seek an order (i) holding each of the Defendants
jointly and severally liable for contributing to an ongoing
public nuisance, global warming, and (ii) enjoining each of the
Defendants to abate its contribution to the nuisance by capping
its emissions of carbon dioxide and then reducing those emissions
by a specified percentage each year for at least a decade." State
Compl. ¶ 6; OSI Compl. ¶ 10. According to Plaintiffs, the
unspecified reductions they seek "will contribute to a reduction
in the risk and threat of injury to the plaintiffs and their
citizens and residents from global warming." State Compl. ¶ 148;
OSI Compl. ¶ 90.
By way of a variety of motions, supported by Unions for Jobs
and the Environment and opposed by the Association of the Bar of
the City of New York, as amici, Defendants move to dismiss the
complaints against them on several grounds. First, Defendants
contend that Plaintiffs have failed to state a claim upon which
relief can be granted because: (1) there is no recognized federal
common law cause of action to abate greenhouse gas emissions that
allegedly contribute to global warming; (2) separation of powers
principles preclude this Court from adjudicating these actions; and (3) Congress has displaced any
federal common law cause of action to address the issue of global
warming. Second, Defendants contend that this Court lacks
jurisdiction over Plaintiffs' claims because: (1) Plaintiffs do
not have standing to sue on account of global warming and (2)
Plaintiffs' failure to state a claim under federal law divests
the Court of § 1331 jurisdiction. Def. Memo. at 27.*fn4 In
addition to advancing these primary arguments, Defendants
Southern, TVA, Xcel, and Cinergy move to dismiss for lack of
personal jurisdiction, and TVA moves to dismiss because, as an
agency and instrumentality of the United States, it claims that
it cannot be sued for a tort when the subject of the lawsuit is
the actions it performs as part of its discretionary functions.
TVA Memo. at 11-12.*fn5
Rule 12(b)(6) of the Federal Rules of Civil Procedure requires
dismissal of complaints that are not legally sufficient. Goldman
v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). Rule 12(b)(1) requires dismissal when "the district court lacks the
statutory or constitutional power to adjudicate it." Makarova v.
United States, 201 F.3d 110, 113 (2d Cir. 2000). A "plaintiff
asserting subject matter jurisdiction has the burden of proving
by a preponderance of the evidence that it exists." Makarova,
201 F.3d at 113 (citing Malik v. Meissner, 82 F.3d 560, 562 (2d
Cir. 1996)). Under both rules, as noted above, this Court must
accept the allegations of the complaints as true and construe all
reasonable inferences in favor of Plaintiffs. See supra note 1.
Because federal courts are courts of limited jurisdiction,
whether a court has jurisdiction is an issue generally to be
addressed first. See Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83, 95 (1998). "The requirement that
jurisdiction be established as a threshold matter `spring[s] from
the nature and limits of the judicial power of the United States'
and is `inflexible and without exception.'" Id. at 94-95
(quoting Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379, 382
(1884)). "[E]ither the absence of standing or the presence of a
political question suffices to prevent the power of the federal
judiciary from being invoked by the complaining party."
Schlesinger v. Reservists Committee to Stop the War,
418 U.S. 208, 215 (1974) (internal citations omitted).
The threshold jurisdictional question in this case is whether
the complaints raise non-justiciable political questions that are beyond the limits of this Court's jurisdiction.*fn6
Defendants argue that "separation-of-powers principles foreclose
recognition of the unprecedented `nuisance' action plaintiffs
assert," see Def. Reply Memo. at 7,*fn7 which I take to be
an argument that Plaintiffs raise a non-justiciable political
question. At oral argument, counsel for AEP and Cinergy argued
that by "asking this Court to resolve an environmental policy
question with sweeping implications for the nation's economy, its
foreign relations, and even potentially its national security,"
Plaintiffs "have put the cart before the horse." Tr. 6:1-6:5;
11:11.*fn8 Defendants AEP and Cinergy also note that the
Supreme Court imposes on courts "an unflagging duty" to exercise
their jurisdiction appropriately and refrain from resolving
questions of high policy, which are for the political branches.
Tr. 10:22-10:25; 11:17-11:19. Accordingly, this issue will be addressed first.
To determine if a case is justiciable in light of the
separation of powers ordained by the Constitution, a court must
decide "whether the duty asserted can be judicially identified
and its breach judicially determined, and whether protection for
the right asserted can be judicially molded." Baker v. Carr,
369 U.S. 186, 198 (1962). Six situations have been recognized as
indicating the existence of a non-justiciable political question:
 a textually demonstrable constitutional
commitment of the issue to a coordinate political
department; or  a lack of judicially discoverable
and manageable standards for resolving it; or  the
impossibility of deciding without an initial policy
determination of a kind clearly for nonjudicial
discretion; or  the impossibility of a court's
undertaking independent resolution without expressing
lack of the respect due coordinate branches of the
government; or  an unusual need for unquestioning
adherence to a political decision already made; or
 the potentiality of embarrassment from
multifarious pronouncements by various departments on
Vieth v. Jubelirer, 541 U.S. 267
, 277-78 (2004) (quoting Baker
v. Carr, 369 U.S. 186
, 217 (1962)). Although several of these
indicia have formed the basis for finding that Plaintiffs raise a
non-justiciable political question, the third indicator is
particularly pertinent to this case. As noted above, a non-justiciable political question exists
when a court confronts "the impossibility of deciding without an
initial policy determination of a kind clearly for nonjudicial
discretion." Vieth, 541 U.S. at 278. As the Supreme Court has
recognized, to resolve typical air pollution cases, courts must
strike a balance "between interests seeking strict schemes to
reduce pollution rapidly to eliminate its social costs and
interests advancing the economic concern that strict schemes
[will] retard industrial development with attendant social
costs." Chevron U.S.A., Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837
, 847 (1984). In this case, balancing those
interests, together with the other interests involved, is
impossible without an "initial policy determination" first having
been made by the elected branches to which our system commits
such policy decisions, viz., Congress and the President.
Plaintiffs advance a number of arguments why theirs is a simple
nuisance claim of the kind courts have adjudicated in the past,
but none of the pollution-as-public-nuisance cases*fn9 cited
by Plaintiffs has touched on so many areas of national and international policy. The scope and magnitude of the relief
Plaintiffs seek reveals the transcendently legislative nature of
this litigation. Plaintiffs ask this Court to cap carbon dioxide
emissions and mandate annual reductions of an as-yet-unspecified
percentage. State Compl., Prayer for Relief ¶ b. Such relief
would, at a minimum, require this Court to: (1) determine the
appropriate level at which to cap the carbon dioxide emissions of
these Defendants; (2) determine the appropriate percentage
reduction to impose upon Defendants; (3) create a schedule to
implement those reductions; (4) determine and balance the
implications of such relief on the United States' ongoing
negotiations with other nations concerning global climate change;
(5) assess and measure available alternative energy resources;
and (6) determine and balance the implications of such relief on
the United States' energy sufficiency and thus its national
security all without an "initial policy determination" having
been made by the elected branches.
Defendants have set forth just a few of the difficult "initial
policy determination[s]" that would have to be made by the
elected branches before any court could address these issues:
[G]iven the numerous contributors of greenhouse
gases, should the societal costs of reducing such
emissions be borne by just a segment of the
electricity-generating industry and their industrial
and other consumers?
Should those costs be spread across the entire
electricity-generating industry (including utilities in the plaintiff States)? Other industries?
What are the economic implications of these choices?
What are the implications for the nation's energy
independence and, by extension, its national
Def. Memo. at 7-8.
If there is any doubt as to the complexity of the "initial
policy determination[s]" that must be made by the elected
branches before a non-elected court can properly adjudicate a
global warming nuisance claim, one need only look to the
statements of the EPA, the agency in which "Congress has vested
administrative authority" over the "technically complex area of
environmental law," New England Legal Foundation v. Costle,
666 F.2d 30, 33 (2d Cir. 1981), and which has been grappling with the
proper approach to the issue of global climate change for years.
It is hard to imagine any issue in the environmental
area having greater "economic and political
significance" than regulation of activities that
might lead to global climate change.
68 Fed. Reg. 52922, 52928 (Sep. 8, 2003).
The issue of global climate change . . . has been
discussed extensively during the last three
Presidential campaigns; it is the subject of debate
and negotiation in several international bodies; and
numerous bills have been introduced in Congress over
the last 15 years to address the issue.
68 Fed. Reg. at 52928. Unilateral [regulation of carbon dioxide emissions in
the United States] could also weaken U.S. efforts to
persuade key developing countries to reduce the
[greenhouse gas] intensity of their economies.
68 Fed. Reg. at 52931.
Unavoidably, climate change raises important foreign
policy issues, and it is the President's prerogative
to address them. 68 Fed. Reg. at 52931.
Virtually every sector of the U.S. economy is either
directly or indirectly a source of [greenhouse gas]
emissions, and the countries of the world are
involved in scientific, technical, and
political-level discussions about climate change.
68 Fed. Reg. at 52928.
Considering these statements in no way undermines the
longstanding principle that the judicial branch, not the
political branches, determines, on a case-by-case basis, when a
political question is raised. Looking at the past and current
actions (and deliberate inactions) of Congress and the Executive
within the United States and globally in response to the issue of
climate change merely reinforces my opinion that the questions
raised by Plaintiffs' complaints are non-judiciable political
The parties dispute what effect, if any, the relief sought by
Plaintiffs would have on United States foreign relations.
Plaintiffs contend that there would no effect because the
"[o]fficial United States policy is to reduce domestic emissions." Pl. Opp. at 20.*fn10 Plaintiffs cite, inter
alia, EPA and DOE's promotion of voluntary efforts to reduce
greenhouse gas emissions, the President's statement that "[we]
can make great progress in reducing emissions, and we will. Yet,
even that isn't enough," Congress' commissioning of research on
technologies to reduce carbon dioxide emissions, and the UNFCCC's
references to limiting emissions. Pl. Opp. at 21. However,
official United States policy is expressed by statutes and
treaties in force, not press releases. And "[a]s Justice
Frankfurter observed, in interpreting a statute, `[o]ne must
. . . listen attentively to what it does not say.'" Commonwealth
of Mass. v. United States EPA, 2004 WL 2584896, at *11 (D.C.
Cir. Nov. 2, 2004) (citing Felix Frankfurter, Some Reflections on
the Reading of Statutes, 47 Colum. L. Rev. 527, 536 (1947)). The
explicit statements of Congress and the Executive on the issue of
global climate change in general and their specific refusal to
impose the limits on carbon dioxide emissions Plaintiffs now seek
to impose by judicial fiat confirm that making the "initial
policy determination[s]" addressing global climate change is an
undertaking for the political branches. Because resolution of the issues presented here requires
identification and balancing of economic, environmental, foreign
policy, and national security interests, "an initial policy
determination of a kind clearly for non-judicial discretion" is
required. Vieth, 541 U.S. at 278 (quoting Baker,
369 U.S. at 212). Indeed, the questions presented here "uniquely demand
single-voiced statement of the Government's views." Baker,
369 U.S. at 211. Thus, these actions present non-justiciable
political questions that are consigned to the political branches,
not the Judiciary.
For the reasons set forth above, the complaints are dismissed.
The Clerk of the Court shall mark these actions closed and all
pending motions denied as moot.
© 1992-2005 VersusLaw Inc.