Another Court Rules Against Regulation-by-Litigation in Climate Change Public Nuisance Lawsuits

Donald Kochan

On July 19, the U.S. District Court for the Southern District of New York dismissed the lawsuit brought by the City of New York and others against several large oil companies.  The lawsuit claimed those companies were responsible for public and private nuisances under federal common law for the transboundary effects of emissions causing climate change.   These municipality lawsuits for climate change are the subject of a Federalist Society Environmental Law & Property Rights Practice Group podcast  from  July 3, titled “Municipality Lawsuit on Climate Change and Public Nuisance: Litigation Update.”

In his July 19 order and opinion, U.S. District Judge John F. Keenan noted that “Climate science clearly demonstrates that the burning of fossil fuels is the primary cause of climate change,” but then he held that the Clean Air Act is a comprehensive program for dealing with these problems and thus displaces federal common law claims (following the U.S. Supreme Court precedent in American Electric Power Co. v. Connecticut, 564 U.S. 410 (2011)).

The court noted that, “As an initial matter, it is not clear that Defendants’ fossil fuel production and the emissions created therefrom have been an ‘unlawful invasion’ in New York City, as the City benefits from and participates in the use of fossil fuels as a source of power, and has done so for many decades. More importantly, Congress has expressly delegated to the EPA the determination as to what constitutes a reasonable amount of greenhouse gas emission under the Clean Air Act.”

The court also noted that the city could not continue its lawsuit by trying to characterize its claims as falling under state law.  Federal common law, if any, clearly applies to the city’s claims for widespread transboundary harms.  The court held, “Given the interstate nature of these claims, it would thus be illogical to allow the City to bring state law claims when courts have found that these matters are areas of federal concern that have been delegated to the Executive Branch as they require a uniform, national solution.”

The court positioned the case as one involving questions of separation of powers and comparative institutional competency: “Climate change is a fact of life, as is not contested by Defendants.  But the serious problems caused thereby are not for the judiciary to ameliorate. Global warming and solutions thereto must be addressed by the two other branches of government.”

Finally, the July 19 order underscored that litigation is a poor vehicle for resolving complicated climate change issues that could embroil the judiciary in foreign policy concerns better handled by the political branches.  The court reasoned that “the immense and complicated problem of global warming requires a comprehensive solution that weighs the global benefits of fossil fuel use with the gravity of the impending harms. To litigate such an action for injuries from foreign greenhouse gas emissions in federal court would severely infringe upon the foreign policy decisions that are squarely within the purview of the political branches of the U.S. Government.  Accordingly, the Court will exercise appropriate caution and decline to recognize such a cause of action.”

The July 19 opinion from the U.S. District Court for the Southern District of New York echoes many of the same concerns that led the U.S. District Court for the Northern District of California on June 25 to dismiss a similar public nuisance climate change-based lawsuit brought by the cities of Oakland and San Francisco.  For many of the same reasons, U.S. District Judge William Alsup’s order in that case held that it was not the proper role of the courts in a system of separated powers to resolve complex issues of climate change and entertain a theory of liability that the court called “breathtaking” in scope, especially when court intervention may actually “interfere with reaching a worldwide consensus” on how to address climate change.

The July 3 Federalist Society podcast analyzes Judge Alsup’s order and the multitude of lawsuits brought by municipalities and others across the country, like the one now just dismissed in New York, asking courts to create new liability regimes for climate change effects.  The podcast examines the history of, and the major issues raised by, these cases—including what it takes to establish a public nuisance claim, the proper role of the courts in deciding hot button policy issues and avoidance of displacement of other government branch prerogatives, the dangers of imposing retroactive liability, extraterritorial application of law, and the justiciability of claims especially when they may impact foreign policy.

Donald Kochan

Professor of Law and Executive Director, Law and Economics Center

Antonin Scalia Law School, George Mason University

Energy & Environment

Federalist Society’s Environmental Law & Property Rights Practice Group

The Federalist Society and Regulatory Transparency Project take no position on particular legal or public policy matters. All expressions of opinion are those of the author(s). To join the debate, please email us at [email protected].

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