Global-Warming Tort Suit Moves Towards Argument in U.S. Supreme Court
by Jack Krill (Harrisburg), Christopher Kratovil (Dallas) and Stephen Matzura (Harrisburg)
Briefs on the merits are now being filed in the U.S. Supreme Court in American Electric Power et al. v. Connecticut et al., in which eight states and three land trusts are suing six electric utilities to abate emissions alleged to be contributing to global warming.
The utilities are appealing the decision of the Second Circuit Court of Appeals, which held that the complaint stated a cause of action in the nature of a federal common-law tort of public nuisance. The utilities are arguing essentially three points. First, the plaintiffs do not meet the requirements of Article III of the U.S. Constitution for standing to sue, because their alleged injuries are neither fairly traceable to the defendants nor redressable by the courts. Second, the federal common law tort of nuisance does not include global warming and has been "displaced" by the remedies in the Clean Air Act. Third, the case is nonjusticiable (relying on the precedent set in Vieth v. Jubelirer, a case that K&L Gates won in 2004) .
One utility, the Tennessee Valley Authority, is a federal instrumentality, represented by the Obama Administration's Solicitor General. The Administration agreed that the case is nonjusticiable and that the cause of action has been superseded by the Clean Air Act, but conceded that some of the states may have standing as landowners. Twenty-three briefs have been filed by amici curiae, reinforcing the arguments of the utilities.
K&L Gates filed an amicus brief supporting the utilities, but focused on a threshold issue of statutory jurisdiction that the parties and other amici did not address. Our brief argues that a federal common-law cause of action for public nuisance is not within the scope of federal-question jurisdiction, because it does not "aris[e] under the Constitution, laws or treaties of the United States," within the meaning of 28 U.S.C. §1331.
The brief asks the Court to overrule Illinois v. City of Milwaukee, a 1972 decision recognizing a federal common-law cause of action for public nuisance, because it conflicts with other precedent, lacks a basis in the statute and conflates the concept of common-law rules of decision with common-law causes of action. Differentiating state courts, that have always had the power to create common-law causes of action, the brief urges the Court to disclaim such a power for the federal judiciary.
The brief was filed by Jack Krill (Harrisburg), Chris Kratovil (Dallas) and Steve Matzura (Harrisburg) on behalf of amicus curiae Professor Nicholas Johnson of Fordham Law School.
Briefs of the respondents and their amici will be filed in March. The Court has listed the case for argument on Tuesday, April 19, 2011.
