582 F.3d 309 (2nd Cir. 2009), 05-5104-cv, State of Connecticut v. American Elec. Power Co., Inc.

Docket Nº:05-5104-cv, 05-5119-cv.
Citation:582 F.3d 309
Opinion Judge:PETER W. HALL, Circuit Judge:
Party Name:State of CONNECTICUT, State of New York, People of the State of California ex rel. Attorney General Bill Lockyer, State of Iowa, State of New Jersey, State of Rhode Island, State of Vermont, State of Wisconsin, and City of New York, Plaintiffs-Appellants, v. AMERICAN ELECTRIC POWER COMPANY INC., American Electric Power Service Corporation, Southern
Attorney:Richard Blumenthal, Attorney General of the State of Connecticut, Hartford, CT, Peter Lehner, Bureau Chief, Environmental Protection Bureau of the State of New York, (Eliot Spitzer, Attorney General of the State of New York, Caitlin J. Halligan, Solicitor General, Daniel J. Chepaitis, Assistant S...
Judge Panel:Before: McLAUGHLIN and HALL, Circuit Judges.
Case Date:September 21, 2009
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 309

582 F.3d 309 (2nd Cir. 2009)

State of CONNECTICUT, State of New York, People of the State of California ex rel. Attorney General Bill Lockyer, State of Iowa, State of New Jersey, State of Rhode Island, State of Vermont, State of Wisconsin, and City of New York, Plaintiffs-Appellants,

v.

AMERICAN ELECTRIC POWER COMPANY INC., American Electric Power Service Corporation, Southern Company, Tennessee Valley Authority, Xcel Energy, Inc., and Cinergy Corporation, Defendants-Appellees.

Page 310

Open Space Institute, Inc., Open Space Conservancy, Inc., Audubon Society of New Hampshire, Plaintiffs-Appellants,

v.

American Electric Power Company Inc., American Electric Power Service Corporation, Southern Company, Tennessee Valley Authority, Xcel Energy, Inc., and Cinergy Corporation, Defendants-Appellees.

Nos. 05-5104-cv, 05-5119-cv.

United States Court of Appeals, Second Circuit.

September 21, 2009

Argued: June 7, 2006.

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Richard Blumenthal, Attorney General of the State of Connecticut, Hartford, CT, Peter Lehner, Bureau Chief, Environmental Protection Bureau of the State of New York, (Eliot Spitzer, Attorney General of the State of New York, Caitlin J. Halligan, Solicitor General, Daniel J. Chepaitis, Assistant Solicitor General, Jared Snyder, Simon Wynn, Assistant Attorneys General of

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the State of New York, on the brief), New York, NY, for State and New York City Plaintiffs-Appellants.

Matthew F. Pawa, (Benjamin A. Krass, on the brief), Law Offices of Matthew F. Pawa, P.C., Newton Centre, MA, (Mitchell S. Bernard, Nancy S. Marks, Amelia E. Toledo, Natural Resources Defense Council, Inc., New York, NY, on the brief) for Organizational Plaintiffs-Appellants.

Joseph R. Guerra, (Angus Macbeth, Thomas G. Echikson, on the briefs), Sidley Austin LLP, Washington, D.C., (Steven M. Bierman, Sidley Austin LLP, New York, NY, Thomas E. Fennell, Michael L. Rice, Jones Day, Dallas, TX, Shawn Patrick Regan, Hunton & Williams LLP, New York, NY, F. William Brownell, Norman W. Fichthorn, Allison D. Wood, Hunton & Williams LLP, Washington D.C., on the briefs) for Defendants-Appellees.

Edwin W. Small, Assistant General Counsel, (Maureen H. Dunn, General Counsel, Harriet A. Cooper, Assistant General Counsel, on the brief), Tennessee Valley Authority, Knoxville, TN, for Defendant-Appellee TVA.

Before: McLAUGHLIN and HALL, Circuit Judges.[*]

PETER W. HALL, Circuit Judge:

In 2004, two groups of Plaintiffs, one consisting of eight States and New York City, and the other consisting of three land trusts (collectively " Plaintiffs" ), separately sued the same six electric power corporations that own and operate fossil-fuel-fired power plants in twenty states (collectively " Defendants" ), seeking abatement of Defendants' ongoing contributions to the public nuisance of global warming. Plaintiffs claim that global warming, to which Defendants contribute as the " five largest emitters of carbon dioxide in the United States and ... among the largest in the world," Connecticut v. American Electric Power Co., 406 F.Supp.2d 265, 268 (S.D.N.Y.2005), by emitting 650 million tons per year of carbon dioxide, is causing and will continue to cause serious harms affecting human health and natural resources. They explain that carbon dioxide acts as a greenhouse gas that traps heat in the earth's atmosphere, and that as a result of this trapped heat, the earth's temperature has risen over the years and will continue to rise in the future. Pointing to a " clear scientific consensus" that global warming has already begun to alter the natural world, Plaintiffs predict that it " will accelerate over the coming decades unless action is taken to reduce emissions of carbon dioxide."

Plaintiffs brought these actions under the federal common law of nuisance or, in the alternative, state nuisance law, to force Defendants to cap and then reduce their carbon dioxide emissions. Defendants moved to dismiss on a number of grounds. The district court held that Plaintiffs' claims presented a non-justiciable political question and dismissed the complaints. See id.

On appeal, Plaintiffs argue that the political question doctrine does not bar adjudication of their claims; that they have standing to assert their claims; that they have properly stated claims under the federal common law of nuisance; and that their claims are not displaced by federal statutes. Defendants respond that the district court's judgment should be upheld, either because the complaints present non-justiciable political questions or on a number of alternate grounds: lack of standing;

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failure to state a claim; and displacement of federal common law. In addition, Defendant Tennessee Valley Authority (" TVA" ) asserts that the complaints should be dismissed against it on the basis of the discretionary function exception.

We hold that the district court erred in dismissing the complaints on political question grounds; that all of Plaintiffs have standing; that the federal common law of nuisance governs their claims; that Plaintiffs have stated claims under the federal common law of nuisance; that their claims are not displaced; and that TVA's alternate grounds for dismissal are without merit. We therefore vacate the judgment of the district court and remand for further proceedings.

Given the number of issues involved, we set out the following table of contents.

Background 316
I. The States' Complaint 316
II. The Land Trusts' Complaint 318
III. The District Court's Amended Opinion and Order 319
Discussion 320
I. Standard of Review 320
II. The Political Question Doctrine 321
A. Overview of the Political Question Doctrine 321
B. Application of the Baker Factors 323
1. The First Baker Factor 324
2. The Second Baker Factor 326
3. The Third Baker Factor 330
4. The Fourth, Fifth, and Sixth Baker Factors 331
III. Standing 332
A. The States' Parens Patriae Standing 334
1. Background 334
2. Parens Patriae as a Species of Article III Standing 335
3. Effect of Massachusetts v. EPA 336
4. States' Allegations Satisfy the Snapp Test 338
B. The States' and the Trusts' Article III Proprietary Standing 339
1. Have Plaintiffs Sufficiently Alleged Injury-in-Fact? 340
a. Current Injury 341
b. Future Injury 342
2. Causation 345
3. Redressability 347
IV. Stating a Claim under the Federal Common Law of Nuisance 349
A. Standard of Review 349
B. The Federal Common Law of Nuisance and the Restatement's Definition of Public Nuisance 350
C. Have the States Stated a Claim under the Federal Common Law of Nuisance? 352
1. Applying the Public Nuisance Definition to the States 352
2. Defendants' Arguments 353
a. Constitutional Necessity 353
b. The Character of the Alleged Nuisance 355
D. May Non-State Parties Sue under the Federal Common Law of Nuisance? Analysis of Federal Common Law of Nuisance Case Law 358
1. Federal Common Law of Nuisance Case Law Concerning Non-State Parties 359
a The Federal Government and Municipalities as Plaintiffs 359
b. Private Plaintiffs 361
c. Whether Municipalities and Private Parties Can State a Claim under the Federal Common Law of Nuisance-An Examination of Milwaukee I's Footnote 6 364
2. The Restatement (Second) of Torts's Requirements for Maintaining an Action for Public Nuisance under § 821C 366
a. Can New York City Maintain a Public Nuisance Suit under § 821C? 366
b. Can the Trusts Maintain a Public Nuisance Suit under § 821C? 367
3. Have New York City and the Trusts Stated a Claim for Public Nuisance under § 821B? 369
V. Displacement of Plaintiffs' Federal Common Law Claim 371
A. The Displacement Standard 371
B. Analysis 375
1. The Clean Air Act 375
a. Overview: the Clean Air Act 375
b. Analysis: Whether the Clean Air Act Displaces Federal Common Law in the Area of Greenhouse Gas Emissions from Stationary Sources 378
2. All Legislation " on the Subject" of Greenhouse Gases 381
a. Overview: the Legislative Landscape 381
b. Analysis: All Statutes " Touching" on Greenhouse Gases 385
C. Displacement on Foreign Policy Grounds 388
VI. Defendant Tennessee Valley Authority's Separate Arguments 388
A. Background 388
B. Political Question Arguments 389
C. The Discretionary Function Exception 390
VII. State Law Claims 392
Conclusion 392

Page 316 BACKGROUND I. The States' Complaint In July 2004, eight States-California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont, and Wisconsin-and the City of New York (generally, hereinafter, " the States" ) filed a complaint against Defendants American Electric Power Company, Inc., American Electric Power Service Corporation,1 Southern Company, TVA, Xcel Energy, and Cinergy Corporation. The complaint sought " abatement of defendants' ongoing contributions to a public nuisance" under federal common law, or in the alternative, under state law. Specifically, the States assert that Defendants are " substantial contributors to elevated levels of carbon dioxide and global warming," as their annual emissions comprise " approximately one quarter of the U.S. electric power sector's carbon dioxide emissions and approximately ten percent of all carbon dioxide emissions from human activities in the United States." Moreover, the rate...

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