The opinion of the court was delivered by: LORETTA PRESKA, District Judge
AMENDED 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,
as amicus, 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 ...