Today the Second Circuit issued an opinion in a case involving several states and organizations against the biggest utilities in the country. In this case, the plaintiffs are alleging that, by producing excessive carbon dioxide and other greenhouse gases, these utilities are creating a public nuisance. The district court had dismissed the case on several grounds of which two are important here. First, the district court found that the issue of global warming was a political question. Second, the district court found that the Clean Air Act preempted traditional state and federal common law claims like public nuisance.
The Second Circuit reinstated the case. In particular, they found that the issue was not a political question just because the political branches might at some point choose to pass or not pass legislation on the issue. They also found that the Clean Air Act was not specific enough to clearly preempt common law claims. They also found that the regulations being enacted in response to the U.S. Supreme Court decision of two years dealing with greenhouse gases and motor vehicles were still in an early stage and, presently, only covered motor vehicles, not stationary sources (like power plants). As such, these regulations also do not yet preempt common law claims.
The bottom line with both this decision and the previous decision by the U.S. Supreme Court (which all but required the EPA to regulate greenhouse gases from motor vehicles) is that environmentalists are making some progress in the courts on placing restrictions on carbon dioxide. Obviously, the judicial process is slow and there is no guarantee of a win in the end. On the other hand, in the judicial process, facts do actually matter and the evidence strongly favors tougher regulations.
As such, both environmentalists and the utilities have to be asking which side loses if climate control legislation fails. My personal belief is that legislation might produce a more workable scheme than a court decree will. However, a court decree could also impose tougher rules than politicians would be willing to support. If utilities do not tell the Republicans that they need to be at the table, the failure of climate change legislation could ultimately backfire on the utilities.