Connecticut v. American Elec. Power Co., Inc., 04 Civ. 5669(LAP).

• Decision Date: 22 September 2005
• Docket Number: No. 04 Civ. 5670(LAP).,No. 04 Civ. 5669(LAP).,04 Civ. 5669(LAP).,04 Civ. 5670(LAP).
• Citation: Connecticut v. American Elec. Power Co., Inc., 406 F.Supp.2d 265 (S.D. N.Y. 2005)
• Parties: State of CONNECTICUT, et al., Plaintiffs, v. AMERICAN ELECTRIC POWER COMPANY, INC., et al., Defendants. Open Space Institute, et al., Plaintiffs, v. American Electric Power Company, Inc., et al., Defendants.
• Court: U.S. District Court — Southern District of New York

406 F.Supp.2d 265

State of CONNECTICUT, et al., Plaintiffs, v. AMERICAN ELECTRIC POWER COMPANY, INC., et al., Defendants.

Open Space Institute, et al., Plaintiffs, v. American Electric Power Company, Inc., et al., Defendants.

No. 04 Civ. 5669(LAP).

No. 04 Civ. 5670(LAP).

United States District Court, S.D. New York.

September 22, 2005.

Richard Blumenthal, Attorney General, Kimberley Massicotte, Assistant Attorney General, Matthew Levine, Assistant Attorney General, Hartford, CT, for State of Connecticut.

Elliot Spitzer, Attorney General, Peter Lehner, Assistant Attorney General, J. Jared Snyder, Assistant Attorney General, Simon Wynn, Assistant Attorney General, Environmental Protection Bureau, New York City, for State of New York.

Bill Lockyer, Attorney General, Ken Alex, Assistant Attorney General, William Brieger, Sacramento, CA, for State of California.

Thomas J. Miller, Attorney General, Tam V. Ormiston, Deputy Attorney General, David R. Sheridan, Assistant Attorney General, Des Moines, IA, for State of Iowa.

Peter C. Harvey, Attorney General, Lisa J. Morelli, Deputy Attorney General, Trenton, NJ, for State of New Jersey.

Patrick C. Lynch, Attorney General, Michael Rubin, Assistant Attorney General, Dept. of Attorney General, Providence, RI, for State of Rhode Island.

William H. Sorrell, Attorney General, S. Mark Sciarrotta, Assistant Attorney General, Erick Titrud, Assistant Attorney General, Montpelier, VT, for State of Vermont.

Peg Lautenschlager, Attorney General, Thomas J. Dawson, Assistant Attorney General, Director — Environmental Protection Unit, Wisconsin Dept. of Justice, Madison, WI, for State of Wisconsin.

Michael A. Cardozo, Corp. Counsel of the City of New York, Susan M. Kath, Assistant Corp. Counsel, Scott Pasternack, Assistant Corp. Counsel, Michael Burger, Assistant Corp. Counsel, New York City Law Dept., New York City, for City of New York.

Matthew F. Pawa, Benjamin A. Krass, Law Offices of Matthew F. Pawa, PC, Newton Centre, MA, Mitchell S. Bernard, Nancy S. Marks, Amelia E. Toledo, Natural Resources Defense Council, Inc. New York City, for Open Space Institute, Inc., Open Space Conservancy, Inc., and Audubon Society of New Hampshire.

Steven M. Bierman, Patrick M. McGuirk, Sidley, Austin, Brown & Wood, LLP, New York City, Angus Macbeth, Joseph R. Guerra, Thomas G. Echikson, Sidley, Austin, Brown & Wood, LLP, Washington, DC, for Cinergy Corp., American Electric Power Co., Inc., and American Electric Power Services Corp. Shawn Patrick Regan, Hunton & Williams, LLP, New York City, F. William Brownell, Norman W. Fichthorn, Allison D. Wood, Hunton & Williams, LLP, Washington, DC, for The Southern Co.

Harriet A. Cooper, Edwin W. Small, Frank H. Lancaster, Todd L. Fulks, Office of the General Counsel, Tennessee Valley Authority, Knoxville, TN, for Tennessee Valley Authority.

Thomas E. Fennell, Michael L, Rice, Jones Day, Dallas, TX, Patrick G. Broderick, Jones Day, New York City, for Xcel Energy Inc.

AMENDED OPINION AND ORDER

PRESKA, District Judge.

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, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Nixon v. United States, 506 U.S. 224, 113 S.Ct. 732, 122 L.Ed.2d 1 (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, 113 S.Ct. 732. 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.

BACKGROUND¹

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;² OSI Compl. ¶ 1.³ 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...