Legislation needed to negate court’s greenhouse-gas ruling

By Patrick Berry - 09/30/09 05:25 PM ET

With the White House and Democratic leaders spending all their political capital on healthcare reform and the economy, the conventional wisdom in Washington has been that no major legislation on climate change would be sent to the president this year. However, the recent decision by the U.S. Court of Appeals for the 2nd Circuit in Connecticut v. American Electric Power Company could open the way to making real progress on our most pressing environmental challenge.

The appellate court reversed a lower court’s decision, which had dismissed lawsuits brought by states and public interest groups against several large coal-burning utilities. The plaintiffs had argued that the utilities were creating a nuisance by releasing greenhouse gas (GHG) emissions that were causing global warming. The lower court dismissed the lawsuits on a number of grounds, the most important of which is that the regulation of GHG emissions is a “political question” being resolved by the Congress and the administration, and therefore should not be interfered with by the judicial branch.

The appellate court disagreed. Not only will the lower court be charged with determining what damages have been created by the utility defendants, it might also be required to allocate responsibility for those damages among the multiple defendants. Litigating even a relatively straightforward dispute between two parties over who polluted a site can involve millions of pages of documents, hundreds of depositions, scores of experts and weeks of trial, costing the parties millions of dollars in legal bills. It is difficult to imagine how much more complex and expensive this multi-party, multi-state case will be.

Other federal nuisance cases are pending before different appellate courts. But the 2nd Circuit’s decision is significant because so many businesses are located in New York and Connecticut and are now subject to it. Faced with this prospect, the business community may now become more willing than ever to support comprehensive GHG legislation. In fact, many informed corporate leaders, including ones affiliated with some of the largest GHG-emitting companies in the world, already recognize that comprehensive legislation is the only workable solution. They had embraced that position even before the Connecticut decision was announced because they feared implementation of expensive and unworkable direct regulation by the Environmental Protection Agency, which has announced its intention to use its existing authority under the Clean Air Act.

If leaders on both sides of the aisle in the Senate conclude that the Connecticut case has made the business community more open to comprehensive legislation, then the necessary serious work between the Senate Democrats and Senate Republicans can now begin.

Surely it would be much better if all the effort (and money) slated to be spent on nuisance lawsuits would be devoted instead to helping the Congress and the administration fashion comprehensive climate change legislation. The time to act is now, before other federal courts follow the lead of the 2nd Circuit.

Washington

Berry is a partner in the law firm of Baker Botts LLP and specializes in environmental law. Baker Botts was not involved in the Connecticut case, and the firm states that it has no clients facing exposure from the ruling. The views expressed are the author’s and not necessarily those of the firm or its clients.