Record and brief — American Elec. Power Co. v. Connecticut

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PETITION

FOR

WRIT OF

CERTIORARI

Supreme Court U.S.

No. 10-1071! 4 AUG C2 2010

IN THKOFFICE OF THE CLERK

Supreme Court of the United States

AMERICAN ELECTRIC POWER COMPANY INC., et al.,

Petttvoners,

Vv.

STATE OF CONNECTICUT, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Second

Circuit

—

PETITION FOR A WRIT OF CERTIORARI

F. WILLIAM BROWNELL PETER D. KEISLER*

NORMAN W. FICHTHORN CARTER G. PHILLIPS

ALLISON D. Woop DAVID T. BUENTE JR.

HUNTON & WILLIAMS LLP QUIN M. SORENSON

1900 K Street, N.W. SIDLEY AUSTIN LLP

Washington, D.C. 20006 1501 K Street, N.W.

(202) 955-1500 Washington, D.C. 20005

pkeisler@sidley.com

(202) 736-8000

Counsel for Petitioner Counsel for Petitioners

Southern Company

August 2, 2010 * Counsel of Record

[Additional Counsel Listed On Inside Cover]

SHAWN PATRICK REGAN

HUNTON & WILLIAMS LLP

200 Park Avenue

52nd Floor

New York, N.Y. 10166

(212) 309-1000

Counsel for Petitioner

Southern Company

MARTIN H. REDISH

NORTHWESTERN

UNIVERSITY SCHOOL OF

LAW

375 East Chicago Avenue

Chicago, Illinois 60611

(312) 503-8545

Counsel for Petittoners

DONALD B. AYER

KEVIN P. HOLEWINSKI

JONES DAY

51 Louisiana Avenue, N.W.

Washington, D.C. 20001

(202) 879-3939

THOMAS E. FENNELL

MICHAEL L. RICE

JONES DAY

2727 North Harwood Street

Dallas, Texas 75201

(214) 220-3939

Counsel for Petitioner Xcel

Energy Inc.

QUESTIONS PRESENTED

The court of appeals held that States and private

plaintiffs may maintain actions under federal

common law alleging that defendants—in this case,

five electric utilities—have created a “public

nuisance” by contributing to global warming, and

may seek injunctive relief capping defendants’ carbon

dioxide emissions at judicially-determined levels.

The questions presented are:

1. Whether States and private parties have

standing to seek judicially-fashioned emissions caps

on five utilities for their alleged contribution to

harms claimed to arise from global climate change

caused by more than a century of emissions by

bilhons of independent sources.

2. Whether a cause of action to cap carbon dioxide

emissions can be implied under federal common law

where no statute creates such a cause of action, and

the Clean Air Act speaks directly to the same subject

matter and assigns federal responsibility for

regulating such emissions to the Environmental

Protection Agency.

3. Whether claims seeking to cap defendants’

carbon dioxide emissions at “reasonable” levels,

based on a court’s weighing of the potential risks of

climate change against the socioeconomic utility of

defendants’ conduct, would be governed by “judicially

discoverable and manageable standards” or could be

resolved without “initial policy determination|s] of a

kind clearly for nonjudicial discretion.” Baker v.

Carr, 369 U.S. 186, 217 (1962).

(1)

PARTIES TO THE PROCEEDINGS

Defendant-appellees below were American Electric

Power Company, Inc.; American Electric Power

Service Corporation; Cinergy Corporation (merged

into Duke Energy Corporation); Southern Company;

Xcel Energy Inc.; and the Tennessee Valley

Authority.

Plaintiff-appellants below were’ State of

Connecticut; State of New York; People of the State of

California; State of lowa; State of New Jersey; State

of Rhode Island; State of Vermont; State of

Wisconsin; City of New York; Open Space Institute,

Inc.; Open Space Conservancy, Inc.; and Audubon

Society of New Hampshire.

ill

RULE 29.6 STATEMENT

American Electric Power Company, Inc. is a

publicly traded company. There is no publicly traded

company owning 10% or more of its stock.

American Electric Power Service Corporation is a

wholly-owned subsidiary of American Electric Power

Company, Inc.

Cinergy Corporation merged into Duke Energy

Corporation. Duke Energy Corporation is a publicly

traded company. There is no publicly traded

company owning 10% or more of its stock.

Southern Company has no parent corporation and

no publicly held corporation owns 10% or more of its

stock.

Xcel Energy Inc. has no parent corporation and no

publicly held corporation owns 10% or more of its

stock.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED.........................:.ccc00 i

PARTIES TO THE PROCEEDINGS. ................... ii

eee TD IE EE vesvcccinincencestssssccssesnsccsnens lll

TABLE OF AUTHORITIES .....0cccccccscccscssccscscscnese vii

SE IED sisesiscnecinnesdccwncsanstetsidmmstomaatan 1

IE bpiviccnnstccnscxqnininiiandisaniaaiaaanen 1

CONSTITUTIONAL AND STATUTORY

FTE veinniinsencvioneninasivsseimeametamapaiammnl:

BG PTE OIE ces csccnensnnnsnrsinisicaissleiasuiemnmmmpamiiain

STATEMENT OF THE CASE...................scssccseeees 6

REASONS FOR GRANTING THE PETITION ....... 12

I. THE DECISION BELOW IS ERRONEOUS

AND CONFLICTS WITH DECISIONS OF

THIS AND OTHER COURTS REGARDING

STANDING, FEDERAL COMMON LAW,

AND THE POLITICAL QUESTION

PEPE IIE: sescrscinsisisesiniacnmanioimiuamddanaann 13

A.The Plaintiffs Cannot Show “Global

Warming” Injuries Traceable To The

Actions Of, Or Redressable By Injunc-

tions Against, The Five Defendants......... 13

B. Federal Common Law Does Not Support

A Climate Change Nuisance Cause Of

BI... ccntiucssmmiiaiasnabinaimaniaidadiaaaen 20

C. This Case Presents Non-Justiciable Po-

Ny IOI viiccvccencovecscsecneecauatinatenee 26

(v)

TABLE OF CONTENTS—continued

Il. THE JUSTICIABILITY OF CLIMATE

CHANGE LAWSUITS UNDER FEDERAL

COMMON LAW IS OF EXTRAORDINARY

NATIONAL IMPORTANCE. ....0..0......00:::ee.

iT ii idicdisinsmmnenssonveescsscsssesecosouss

APPENDIX A: Connecticut v. Am. Elec. Power

Co., 582 F.3d 309 (2d Cir. 2009)....................008.

APPENDIX B: Connecticut v. Am. Elec. Power

Co., 406 F. Supp. 2d 265 (S.D.N.Y. 2005).........

APPENDIX C: State of Conn., et al. v. Am.

Elec. Power Co., et al., No. 05-5104 (2d Cir.

EELS ES SE

APPENDIX D: Open Space Inst., et al. v. Am.

Elec. Power Co., et al., No. 05-5119 (2d Cir.

a eusunnoonocese

APPENDIX E: Federal Statutes...................00....

Page

17la

vill

TABLE OF AUTHORITIES

CASES Page

California v. Gen. Motors Corp., No. C06-

05755, 2007 WL 2726871 (N.D. Cal. Sept.

17, 2007), appeal dismissed, No. 07-

16908 (9th Cir. June 24, 2009) .................. 5, 9

Baker v. Carr, 369 U.S. 186 (1962)....... 26, 27, 28

Cipollone v. Liggett Group, Inc., 505 U.S.

BE I inteviicnticscniniiinheevebuinndiasammennuinne 33

City of Milwaukee v. Illinois, 451 U.S. 304

[ET ccisicienshuhiensidiniinineaidenniasaniaacaiimienetis 2, 20, 21, 22

Comer v. Murphy Oil USA, No. 05-436,

2007 WL 6942285 (S.D. Miss. Aug. 30,

TET cilissuseunndsieapernednnennncsaneudiniaundueiibaiiiuissianiniin 4

Comer v. Murphy Oil USA, 585 F.3d 855

(5th Cir. 2009), reh'g granted, 598 F.3d

208 (5th Cir. 2010), appeal dismissed,

607 F.3d 1049 (5th Cir. 2010).................... 10

Ctr. for Bio. Diversity v. Dep't of Interior,

563 F.3d 466 (D.C. Cir. 2009).................... 13

Elk Grove Unified Sch. Dist. v. Newdow,

I eee 14

Friends of the Earth, Inc. v. Gaston Copper

Recycling Corp., 204 F.3d 149 (4th Cir.

re iaicsichtesdeeinincsieink deeb aha hla 18

Gen. Motors Corp. v. United States, 496

ee Mee NTT ciincinihiinielieshieieiniigp aan 10

Georgia v. Tenn. Copper Co., 206 U.S. 230

REESE STR S eaerlenene ace EOS NC RC 24

Illinois v. Outboard Marine Corp., 680 F.2d

tk SESE se 22, 23

Lujan v. Defenders of Wildlife, 504 U.S.

EN TIT ss scensineatuncpatibacudabeinidameiniidadmimaniinliii 13, 17

Massachusetts v. EPA, 549 U.S. 497

Te caodsuibnicidiaduiatimiadbipndaenagiamanndmmnneeinds passim

vill

TABLE OF AUTHORITIES—continued

Page

Mattoon v. City of Pittsfield, 980 F.2d 1 (1st

ne i 22, 23

Middlesex County Sewage Auth. v. Nat'l

Sea Clammers Ass'n, 453 U.S. 1 (1981)..... 21

Missouri v. Illinois,180 U.S. 208 (1901)....... 24

Native Vill. of Kivalina v. ExxonMobil

Corp., 663 F. Supp. 2d 863 (N.D. Cal.

2009), appeal pending, No. 09-17490 (9th

is passim

North Carolina v. TVA, No. 09-1623, 2010

WL 2891572 (4th Cir. July 26, 2010) .... passim

North Dakota v. Minnesota, 263 U.S. 365

ERENT SISEISEM Te Se yr be eek Pa ee 24

O'Melveny & Myers v. FDIC, 512 U.S. 79

ERAT OSSESTPelewnr ences eer Oe re Ont ae 25

PIRG v. Powell Duffryn Terminals Inc.,

913 F.2d 64 (3d Cir. 1990) ................. 15, 18, 19

Sierra Club v. Cedar Point Oil Co., 73 F.3d

5 ERRNO nw ee 18, 19

Simon v. E. Ky. Welfare Rights Org., 426

Or ee 14

Sosa v. Alvarez-Machain, 542 U.S. 692

SRR EUG TEER EEE Pea ool ee en 24

Tex. Indus. v. Radcliff Materials, Inc., 451

EERE Sane oe Oneree nee 25

United States v. E.C. Knight Co., 156 U.S.

ERE ESSER RSS: eee rn ween OR 24

Vieth v. Jubelirer, 541 U.S. 267 (2004) ....... 29, 30

CONSTITUTION AND STATUTES

OF Bo eS OU Oe Penner 2

Clean Air Act, Pub. L. No. 88-206, 77 Stat.

8 i ARLE miele eee 10

TABLE OF AUTHORITIES—continued

Clean Air Amendments of 1970, Pub. L.

No. 91-604, 84 Stat. 1676.........................0

Clean Air Amendments of 1977, Pub. L.

No. 95-95, 91 Stat. 685...............................

National Climate Program Act, Pub. L. No.

95-367, 92 Stat. 601 (1978).............0....000..

Energy Security Act, Pub. L. No. 96-294, 94

Prevention of Significant Deterioration and

Title V Greenhouse Gas Tailoring Rule,

Page

I ets 11

Global Climate Protection Act of 1987, Pub.

L. No. 100-204, 101 Stat. 1407 .................. 11

Pub. L. No. 101-549, 104 Stat. 2399

IIIT tiiciccicidueiebaanhadelaneenidaaneiidinsadimnontianiie 10

Global Change Research Act of 1990, Pub.

L. No. 101-606, 104 Stat. 3096 .................. 12

Energy Policy Act of 1992, Pub. L. No. 102-

i Bs BOD eicceccctccinetesiisesenaniccnsniocs 12

ee I, ciicicncccinsasitiirnctnnnnncensncnse 22

Oe Rn PE Oe I ai cctesncitcnstsensnwintecmnnenenion 2

REGULATIONS

Endangerment and Cause or Contribute

Findings for Greenhouse Gases Under

Section 202(a) of the Clean Air Act, 74

Fed. Reg. 66496 (Dec. 15, 2009)................. 11

Light-Duty Vehicle Greenhouse Gas Emis-

sion Standards and Corporate Average

Fuel Economy Standards, 75 Fed. Reg.

Re Te i catiaslanmeeiaies 11, 23

75 Fed. Reg. 31514 (June 3, 2010). 4, 11, 21, 23

TABLE OF AUTHORITIES—continued

OTHER AUTHORITIES

Climate Talks Continued: Son of Copen-

hagen, Economist, June 17, 2010..............

Key Judge Downplays Prospects For

Successful Climate Damages Suits, Clean

Air Report, Mar. 2, 2010, http://

carboncontrolnews.com/20100302102610/

Carbon-Control-Daily-News/News/key-

judge-downplays-prospects-for-

successful-climate-damages-suits/

menu-id-202. html...............c.cccecceeeeeeeseeeee ees

Restatement (Second) of Torts (1979) ..........

Daniel Hays, Climate Claims Are the ‘New

Asbestos,’ Swiss Re Suggests, Nat'l

Underwriter Property & Casualty, May

ESE eater at ees Ones ee cee mn Datel Nm

Vanessa Holder, Climate Change Could Be

the Next Legal Battlefield, Fin. Times

(London), July 14, 2003 ....0......... eee

Anthony Lacey, GHG Ruling Boosts Push

for ‘Intense’ New Environmental Tort

Claims, Inside EPA Weekly Report

(Inside Wash. Publ’rs., Arlington Va.),

RAR OS SRE ee LEI ee

Laurence H. Tribe et al., Wash. Legal

Found., Critical Legal Issues Series No.

169, Too Hot for Courts To Handle: Fuel

Temperatures, Global Warming, and the

Political Question Doctrine (Jan. 2010).....

White House, Presidential Memorandum

Regarding Fuel Efficiency Standards

EERE RE A STIR ES ne ce

Page

3, 26

PETITION FOR A WRIT OF CERTIORARI

American Electric Power Company Inc., American

Electric Power Service Corp., Cinergy Corp.,

Southern Company, and Xcel Energy Inc. respectfully

petition for a writ of certiorari to review the judgment

of the United States Court of Appeals for the Second

Circuit.

OPINIONS BELOW

The opinion of the Second Circuit is reported at 582

F.3d 309, and reproduced at Petition Appendix (“Pet.

App.”) la-170a. The Second Circuit’s orders denying

rehearing or rehearing en banc are reproduced at Pet.

App. 188a-19la. The opinion of the United States

District Court for the Southern District of New York

is published at 406 F. Supp. 2d 265, and reproduced

at Pet. App. 171a-187a.

JURISDICTION

The court of appeals entered judgment on

September 21, 2009, Pet. App. la, and denied timely

petitions for rehearing or rehearing en banc on

March 5 and 10, 2010, Pet. App. 188a-19la. On June

28, 2010, Justice Ginsburg granted an extension to

and including August 2, 2010, of the time for filing a

petition for a writ of certiorari. This Court has

jurisdiction pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS

The United States Constitution provides, in

pertinent part, that “[t]he judicial Power shall extend

to all Cases, in Law and Equity, arising under this

Constitution, the Laws of the United States, and

Treaties made, or which shall be made, under their

Authority ... [and] to Controversies ... between a

State and Citizens of another State [or] between

Citizens of different States.” U.S. Const. art. III, § 2,

el. 1.

Relevant provisions of the Clean Air Act, 42 U.S.C.

§§ 7401 et seq., are reproduced at Pet. App. 192a-

214a.

INTRODUCTION

This petition raises the important, recurring

question whether States and private plaintiffs have

standing to seek, and whether federal common law

provides authority for courts to impose, a non-

statutory, judicially-created regime for setting caps on

greenhouse gas emissions based on “vague and

indeterminate nuisance concepts.” City of Milwaukee

v. Illinois, 451 U.S. 304, 317 (1981) (“Milwaukee IT’).

This Court recognized “the unusual importance of the

underlying issue” in_- granting = review in

Massachusetts v. EPA, 549 U.S. 497, 506 (2007), and

construing the statutory scheme authorizing the

Environmental Protection Agency (EPA) to regulate

greenhouse gases. This petition asks this Court to

decide whether judges, too, may regulate greenhouse

gas emissions at the behest of States and private

parties and, if so, under what standards. At stake is

the financial health and security of numerous sectors

of the economy. See Vanessa Holder, Climate Change

Could Be the Next Legal Battlefield, Fin. Times

(London), July 14, 2003, at 10 (“The potential

compensation for climate change impacts would make

the tobacco pay-outs look like peanuts.”); Daniel

Hays, Climate Claims Are The ‘New Asbestos,’ Swiss

Re Suggests, Nat’] Underwriter Prop. & Cas., May 29,

2009 (“[C}limate change-related liability will develop

more quickly than asbestos-related claims ....”).

The importance of this Court’s intervention in this

case flows directly from the extraordinary breadth

and consequences of the Second Circuit’s decision. It

permits federal common law claims seeking to hold

companies that emit carbon dioxide liable for the

alleged consequences of global climate change and

authorizes federal courts to impose prospective caps

on their emissions. Those caps would be based not on

any statute or regulation, such as those that govern

the parallel administrative proceedings at EPA in

response to Massachusetts, but instead would depend

on each court’s own assessment of what is

“reasonable” in light of its “weighing of the gravity of

the harm against the utility of the conduct.”

Restatement (Second) of Torts § 821B cmt. e (1979).

The ramifications of this holding, if it is allowed to

stand, are staggering. A single judge could set

emissions standards for regulated utilities across the

country—or, as here, for just that subset of utilities

that the plaintiffs have arbitrarily chosen to sue.

Judges in subsequent cases could set standards for

other utilities or industries, or conflicting standards

for these same utilities. See North Carolina v. TVA,

No. 09-1623, 2010 WL 2891572, at *6 (4th Cir. July

26, 2010) (cautioning that allowing judges to impose

emissions caps based on common law nuisance

standards, “whose content must await the uncertain

twists and turr> of litigation|,] will leave whole states

and industries at sea and potentially expose them to

a welter of conflicting court orders across the

country”).

Furthermore, because virtually every entity and

industry in the world is responsible for some

emissions of carbon dioxide and is thus a potential

defendant in climate change nuisance actions under

the theory of this case, the issues presented are

certain to recur. See Prevention of Significant

Deterioration and Title V Greenhouse Gas Tailoring

Rule, 75 Fed. Reg. 31514, 31597 (June 3, 2010)

(explaining that, unless permitting obligations are

deferred by the agency, “over six million [stationary]

sources” of greenhouse gas emissions would be

subject to permitting requirements under the Clean

Air Act—in “{sjectors ... includ{ing] _ electricity,

industrial, energy, waste treatment, agriculture,

commercial and residential”). Each case gives rise to

a new opportunity for federal judges to make

regulatory judgments that conflict with those of the

politica! branches and eventually with regimes

imposed by other judges.

In this case, the named defendants—four private

utilities and the Tennessee Valley Authority (TVA)—

operate facilities in 21 States and provide electricity

to millions of individuals and enterprises. If they

must limit their output or shut down facilities to

comply with court-mandated emissions caps, such

judicial directives could transform the way the

United States produces and obtains energy, limit its

supply, dramatically raise its cost, and jeopardize

reliable service to the public.

Cases seeking relief under similar common law

theories have been filed in the Second, Fifth, and

Ninth Circuits against defendants from the electric

utility, oil, automotive, coal, and chemical industries.

As these cases illustrate, the scope of potential

allegations of injuries caused by global warming is

limitless—ranging from severe weather-related

events such as Hurricane Katrina, see Comer v.

Murphy Oil USA, No. 05-436, 2007 WL 6942285 (S.D.

Miss. Aug. 30, 2007), to the relocation of entire

villages, see Native Vill. of Kivalina v. ExxonMobil

Corp., 663 F. Supp. 2d 863, 879-80 (N.D. Cal. 2009),

to flooding, erosion, wildfires, see California v. Gen.

Motors Corp., No. C06-05755, 2007 WL 2726871

(N.D. Cal. Sept. 17, 2007), and beyond. The threat of

such litigation and the indeterminate exposure to

monetary and injunctive relief that it entails will

substantially impede and alter the future investment

decisions and employment levels of all affected

industries, and ultimately every sector of the

economy.

The Second Circuit called this an “ordinary tort

suit,” see Pet. App. 34a, but it plainly is not.

Advocacy groups have responded to the decision

below by stating they now intend to “ramp up” their

litigation efforts whenever the legislative process is

“mired down.” Anthony Lacey, GHG Ruling Boosts

Push for ‘Intense’ New Environmental Tort Claims,

Inside EPA Weekly Report (Inside Wash. Publ’rs.,

Arlington Va.), Oct. 2, 2009. The author of the

Second Circuit’s opinion himself acknowledged (in

subsequent public remarks) his hope that, even if the

plaintiffs cannot ultimately succeed in their legal

claims, their “nuisance action by nuisance action”

approach to seeking emissions reductions may “help

in a political sense” by providing an “impetus” for

further regulatory and legislative action. Key Judge

Downplays Prospects for Successful Climate Damages

Suits, Clean Air Report, Mar. 2, 2010, http://

carboncontrolnews.com/20100302102610/Carbon-

Control-Daily-News/News/key-judge-downplays-

prospects-for-successful-climate-damages-suits/

menu-id-202. htm].

Thus, far from “ordinary,” this litigation secks to

transfer to the judiciary standardless authority for

some of the most important and sensitive economic,

energy, and social policy issues presently before the

country. Indeed, climate change has received such

intense focus by the political branches, and has been

the subject of long and contentious international

negotiation, precisely because the issues it presents

will reverberate through both the national and world

economies. This Court should grant certiorari to

address the important and highly consequential

separation of powers issues this case presents.

STATEMENT OF THE CASE

This is one of several “climate change” lawsuits

that have been brought in federal courts across the

country. These common law actions seek to restrict

the greenhouse gas emissions of certain enterprises,

or to impose monetary liability on those entities, as

claimed relief for effects of global warming,

notwithstanding existing federal legislation and

regulation in this field and ongoing legislative and

executive actions to address these issues.

1. The complaints in this case, brought by eight

States, three nonprofit land trusts, and a

municipality, seek to hold the five named defendants

“jointly and severally lable for... global warming.”

Pet. App. 178a. They assert that these defendants

emit carbon dioxide, which contributes to elevated

atmospheric levels of greenhouse gases, which in turn

contributes to climate change, which in _ turn

contributes to a wide range of alleged future risks,

including “increase[s] in... respiratory problems,”

“more droughts and floods,” “wildfires,” and

“widespread disruption of ecosystems [and] reduce[d]

biodiversity.” Jd. at lla. The plaintiffs describe

climate change as a “public nuisance,” purportedly

actionable under federal common law, and demand

an order “enjoining each of the defendants to ... cap[]

its emissions of carbon dioxide and ... reduc[e}] those

emissions by a specified percentage each year for at

least a decade.” Jd. at 178a. They note that several

of the State plaintiffs have adopted legislative

restrictions on emissions of carbon dioxide by

facilities within their borders, and claim that,

through federal] judicial decree, they can force

facilities nationwide to reduce their emissions. See

Br. for Appellants at 10, No. 05-5104 (2d Cir. Dec. 16,

2005).

The district court dismissed the claims as

presenting non-justiciable political questions. Pet.

App. 187a. It reasoned that, because climate change

is a global phenomenon attributed to global

greenhouse gas emissions, a court could not resolve

the claims without first determining an acceptable

global level of greenhouse gas emissions and then

determining which particular sectors and industries,

and individual entities, should be held responsible for

reducing their emissions and by what amounts to

achieve that global level. Jd. at 183a-185a. These

decisions, the district court found, necessarily involve

a number of “policy determination[s]” of the type

properly reserved for Congress, including “the

implications of [emissions reductions] on the United

States’ ongoing negotiations with other nations

concerning global climate change ... [and] on the

United States’ energy sufficiency and thus its

national security.” Jd. at 182a-184a. In light of this

conclusion, the district court found it unnecessary to

address whether the plaintiffs had standing or

whether federal common law provided a valid basis

for their claims. Jd. at 180a n.6, 187a.

A two-judge panel of the Second Circuit reversed.

Pet. App. 3a.! Characterizing this as an “ordinary

tort suit,” it held that courts could rely on the

Restatement’s “reasonableness” standard to adjudi-

cate the claims and that, because the case involved

only “six domestic coal-fired electricity plants,”

judges would not have to address the broader “policy”

issues identified by the district court. Jd. at 26a, 34a,

119a. The panel further held that, in light of the

transboundary effects of carbon dioxide emissions

and climate change, federal common law should

supply the rule of decision. Jd. at 88a. Finally,

addressing standing, the panel found the allegation

that these defendants “contribute[d]” to climate

change was adequate to satisfy constitutional

requirements. Id. at 67a-73a.

The Second Circuit denied timely petitions for

rehearing or rehearing en banc. Pet. App. 188a-191a.

2. This case is one of four brought thus far

asserting common law claims based on allegations

that particular defendants “contributed” to climate

change. In each case, the district court dismissed the

claims as_ presenting non-justiciable political

questions and in two of the cases dismissed for lack of

standing as well.

California v. General Motors Corp. (N.D. Cal.)

involved a claim for monetary damages by the State

of California (also a plaintiff here) against six large

' The original panel included then-Judge Sotomayor, who was

appointed to the Supreme Court on August 8, 2009, before the

panel opimon issued. Pet. App. 2a n.*.

2 In fact, the complaints identify dozens of facilities owned or

operated by the defendants in more than 20 States. See Compl

44 167-186, No. 04-5669 (S.D.N.Y. July 21, 2004); Compl.

44 107-126, No. 04-5670 (S.D.N.Y. July 21, 2004).

automakers. 2007 WL 2726871, at *1-2. The State

alleged that climate change constituted a “public

nuisance” under federal and state common law, and

demanded a declaratory judgment “for future

monetary expenses and damages incurred by the

State of California in connection with the nuisance of

global warming.” Jd. The district court found that

resolution of the claims would require an initial

policy determination “as to what is unreasonable in

the context of carbon dioxide emissions,” and

therefore dismissed the claims as presenting non-

justiciable political questions. Jd. at *6-16. An

appeal was filed, but voluntarily dismissed on

June 24, 2009. See No. 07-16908 (9th Cir.).

In Native Village of Kivalina v. ExxonMobil Corp.

(N.D. Cal.), the governing bodies of an Alaskan tribal

village brought suit against 24 oil, energy, and utility

companies seeking compensation for costs to be

incurred in relocating their village. 663 F. Supp. 2d

at 868-69. They alleged that climate change has

reduced sea ice around the village, threatening the

village with imminent destruction from storms that

erode the coastline. Jd. As in General Motors, the

plaintiffs in Kivalina styled their case as a “nuisance”

cause of action. Jd. The district court held the claims

presented non-justiciable political questions and the

plaintiffs lacked standing because they could not

trace their alleged injuries to any of the named

defendants’ emissions. Jd. at 871-82. An appeal,

filed on November 5, 2009, is pending. See No. 09-

17490 (9th Cir.).

Finally, in Comer v. Murphy Oil USA (S.D. Miss.),

a group of Mississippi residents and property owners

(on behalf of a similarly situated putative class)

sought compensatory and punitive damages from

dozens of oil, coal, chemical, and utility companies for

harms caused by Hurricane Katrina. 585 F.3d 855,

857-60 (5th Cir. 2009). They alleged that Katrina

was “fueled and intensified” by higher temperatures

attributable to climate change, that the defendants

had contributed to climate change through their

greenhouse gas emissions, and that those entities

should be held responsible for Katrina’s effects. Jd.

The district court dismissed the claims as presenting

political questions and for lack of standing. Id. A

three-judge panel of the Fifth Circuit initially

reversed, see id., but a grant of rehearing en banc

subsequently vacated the panel opinion, see 598 F.3d

208 (5th Cir. 2010). Thereafter, due to an

intervening recusal, the Fifth Circuit concluded it

had lost its quorum and dismissed the appeal, leaving

the district court’s decision (dismissing the lawsuit)

to stand. See 607 F.3d 1049 (5th Cir. 2010).

3. These common law claims are being pursued

against a backdrop of existing and expanding

legislation and federal regulation. The Clean Air Act,

passed by Congress in 1963 and amended several

times thereafter,? created a “comprehensive national

program” to address air pollution in the United

States. Gen. Motors Corp. v. United States, 496 U.S.

530, 532 (1990). In Massachusetts v. EPA, this Court

held that greenhouse gases, including carbon dioxide,

qualify as “air pollutants” under the Act, and directed

EPA to consider whether they should be regulated.

549 US. at 528-29 (citing 42 U.S.C. § 7602(g)).

In 2009, EPA found that greenhouse gas emissions

from motor vehicles “endanger public health or

welfare” and should be regulated under the Clean Air

3 Pub. L. No. 88-206, 77 Stat. 392 (1963); Pub. L. No. 91-604,

84 Stat. 1676 (1970); Pub. L No. 95-95, 91 Stat. 685 (1977); Pub.

L. No. 101-549, 104 Stat. 2399 (1990).

Act. Endangerment and Cause or Contribute

Findings for Greenhouse Gases Under Section 202(a)

of the Clean Air Act, 74 Fed. Reg. 66496 (Dec. 15,

2009). It thereafter issued a final rule establishing

emissions standards for motor vehicles, requiring

(among other mandates) that new models meet an

estimated combined average emissions level of 250

grams of carbon dioxide per mile. Light-Duty Vehicle

Greenhouse Gas Emission Standards and Corporate

Average Fuel Economy Standards, 75 Fed. Reg.

25324 (May 7, 2010); see also White House,

Presidential Memorandum Regarding Fuel Efficiency

Standards (May 21, 2010) (directing EPA to consider

greenhouse gas restrictions on “heavy-duty” vehicles).

EPA has since issued rules addressing greenhouse

gas emissions by “stationary sources,” like facilities

operated by the defendants in this case. See

Prevention of Significant Deterioration and Title V

Greenhouse Gas Tailoring Rule, 75 Fed. Reg. 31514

(June 3, 2010). Those rules establish the contours of

a permitting program that will require facilities

emitting threshold quantities of greenhouse gases to

secure a permit from EPA or an approved local

regulatory authority when constructed’ or

substantially modified and to meet permitting

prerequisites such as emissions limits. Jd. The

program will later be extended to additional sources

that emit lower levels of greenhouse gases. Jd.

Other legislative and executive efforts to address

greenhouse gas emissions and climate change have

occurred both before and after Massachusetts,‘

4 E.g., National Climate Program Act of 1978, Pub. L. No. 95-

367, 92 Stat. 601; Energy Security Act of 1980, Pub. L No. 96-

294, tit. VII, § 711, 94 Stat. 611, 774-75; Global Climate

Protection Act of 1987, Pub. L No. 100-204, tit. XI, 101 Stat.

including diplomatic discussions concerning

international limits on greenhouse gas emissions.

See Climate Talks Continued: Son of Copenhagen,

Economist, June 17, 2010, at 48.

REASONS FOR GRANTING THE PETITION

The questions presented by this case are recurring

and of exceptional importance to the Nation, and

warrant review by this Court. The Second Circuit

relied on federal common law to create an

unprecedented new cause of action—to impose caps

on greenhouse gas emissions of individual enterprises

as relief for alleged future risks of global climate

change—without any supporting statutory authority

and despite the fact that the Clean Air Act addresses

the same subject matter. This holding expands the

judiciary’s role far beyond constitutional bounds,

directing courts to adjudicate claims where no causal

connection exists between the challenged conduct and

alleged harm, where the relief requested would not

redress the alleged harm, and where adjudicating the

claims would implicate fundamental policy issues

reserved for the political branches.

All district courts that have considered these

extraordinary common law claims have properly

rejected them, see supra pp. 8-10, but the Second

Circuit’s decision opens the door for more litigation

against an endlessly expanding group of defendants,

as these and other plaintiffs attempt to set national

climate change policy through federal judicial

policymaking. This Court should intervene now to

address the demonstrable conflicts between the

opinion below and the decisions of this and other

1407; Global Change Research Act of 1990, Pub. L. No. 101-606,

104 Stat. 3096, Energy Policy Act of 1992, Pub. L. No. 102-486,

tit. XVI, § 1601, 106 Stat. 2776, 2999.

Courts, and to prevent the unquestionably harmful

consequences that further litigation in this case and

others may bring.

I. THE DECISION BELOW IS ERRONEOUS

AND CONFLICTS WITH DECISIONS OF

THIS AND OTHER COURTS REGARDING

STANDING, FEDERAL COMMON LAW,

AND THE POLITICAL QUESTION DOC-

TRINE.

Three sets of legal doctrines—those that define the

scope of federal standing (encompassing both “core”

constitutional and “prudential” considerations), the

limits of federal common law, and the categories of

non-justiciable political questions—foreclose use of

the judicial power to adjudicate the plaintiffs’ claims

and to grant their requested relief. The decision

below would establish a policymaking role for the

judiciary of extraordinary breadth, transgressing

each of these vital constitutional boundaries.

A. The Plaintiffs Cannot Show “Global

Warming” Injuries Traceable To The

Actions Of, Or Redressable By Injunc-

tions Against, The Five Defendants.

To establish standing to bring a claim in federal

court, a plaintiff must show an “injury in fact”

attributable to the defendant and redressable by

relief against that defendant. E.g., Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).

The plaintiffs in this case cannot meet this standard.

Climate change is not traceable to any of these

defendants, and would not be redressed by the

imposition of carbon dioxide emissions caps on them.

See, e.g., Ctr. for Bio. Diversity v. Dep't of Interior,

563 F.3d 466, 478-79 (D.C. Cir. 2009); Kivalina, 663

F. Supp. 2d at 879-80. Rather, according to the

plaintiffs’ allegations, climate change results from

greenhouse gas emissions from billions’ of

independent sources over centuries—emissions that

have mixed in undifferentiated fashion in the

atmosphere to gradually increase average global

temperatures. See Pet. App. 9a-10a, 174a-175a.

Indeed, according to the plaintiffs, the injunction they

seek would merely “achieve the [defendants’] share of

the ... reductions necessary to significantly slow the

rate and magnitude of warming.” Compl. 4 148,

No. 04-5669 (S.D.N.Y. July 21, 2004) (emphasis

added); see Pet. App. 178a. In other words, under the

plaintiffs’ own theory, the relief they request would

not by itself redress the harms alleged in the

complaint.

Where, as here, the claimed injuries result from the

actions of third parties—the innumerable others that

have emitted carbon dioxide and other greenhouse

gases over centuries—and redressing those injuries

would depend upon reaching those third parties,

there is no standing. See Simon v. E. Ky. Welfare

Rights Org., 426 U.S. 26, 41-42 (1976) (“the ‘case or

controversy’ limitation of Art. III ... requires that a

federal court act only to redress injury that fairly can

be traced to the challenged action of the defendant,

and not injury that results from the independent

action of some third party not before the court”); see

also, e.g., Elk Grove Unified Sch. Dist. v. Newdow,

542 U.S. 1, 12 (2004) (“(P]rudential standing

encompasses ... ‘the rule barring adjudication of

generalized grievances more appropriately addressed

in the representative branches ....”) (quoting Allen v.

Wright, 468 U.S. 737, 751 (1984)).

The Second Circuit nonetheless allowed the claims

to proceed, holding that a party asserting harms

relating to climate change need allege only that the

defendant “contribute[d]” to global warming. Pet.

App. 69a-70a. The consequence of that holding is to

permit any plaintiff claiming global-warming injuries

to sue virtually any entity in the world, limited only

by the reach of personal jurisdiction. The court of

appeals reached that erroneous conclusion by

misapplying both the standing analysis. of

Massachusetts v. EPA and the “contributor” standing

theory developed in circuit cases in the context of the

Clean Water Act, following PIRG v. Powell Duffryn

Terminals Inc., 913 F.2d 64 (3d Cir. 1990). These

opinions, by their terms, do not support standing

here, and their unwarranted extension to climate

change nuisance cases merits this Court’s review.

1. The Second Circuit held that Massachusetts

supported the plaintiffs’ standing in this case because

that decision upheld claims regarding reductions in

carbon dioxide emissions to address future risks of

climate change. E.g., Pet. App. 75a (concluding that

“Massachusetts disposed of [the] argument” that the

lack of redressability in this case defeats standing);

id. at 72a-73a (finding it “[tjelling” that

Massachusetts upheld standing even though the

State in that case, like the States here, “[could not}

allege that [defendants’] emissions would alone cause

any future harms”) (emphasis in original). But,

whatever similarities may exist between the climate

change allegations in this case and those in

Massachusetts, the court of appeals ignored the

fundamental difference between the statutory cause

of action to challenge agency decisions at issue in

Massachusetts and the non-statutory cause of action

asserted here.

The petitioners in Massachusetts, which included

States as well as private parties, sought judicial

review of EPA’s denial of a rulemaking petition

seeking regulatory restrictions on carbon dioxide

emissions from motor vehicles. 549 U.S. at 516-21.

They relied on a provision of the Clean Air Act that

granted them an express “right to challenge agency

action unlawfully withheld.” /d. at 517 (citing 42

U.S.C. § 7607(b)(1) (authorizing “[a] petition for

review of action of the Administrator ... under this

chapter’)).

This Court held that, because the claims were

brought by a State pursuant to a right of judicial

review expressly conferred by Congress in the Clean

Air Act, a less rigorous standing analysis applied and

Massachusetts could bring the claims “without

meeting all the normal standards for redressability

and immediacy.” /d. at 515-18. Indeed, the Court

described that provision as being “of critical

importance to the standing inquiry.” /d. at 516.

“Congress,” it explained, “has the power to define

injuries and articulate chains of causation that will

give rise to a case or controversy where none existed

before.” Jd. at 516 (quoting Lujan, 504 U.S. at 580

(Kennedy, J., concurring)). By contrast, no statute

grants any right to bring the action here, and the

rationale of Massachusetts is inapplicable.

By extending Massachusetts to this common law

nuisance case, the Second Circuit also ignored the

fundamental difference between claims challenging

governmental regulatory decisions and those seeking

'Even under these relaxed standing requirements,

Massachusetts upheld standing only as to the State and did not

apply those standards to the private plaintiffs, citing the

“special solicitude” owed to States. 549 U.S. at 518, 520. By

contrast, the Second Circuit here held that the private as well as

State plaintiffs have standing to maintain their lawsuits, thus

defining a potentially limitless set of potential plaintiffs in such

cases. Pet. App. 97a-112a.

to impose individual liability on a_ particular

defendant. Responding to EPA’s argument in

Massachusetts that the emissions of the entire

domestic motor-vehicle sector were too small a

fraction of total greenhouse gas emissions to show

traceability and redressability, the Court observed

that regulation generally proceeds through a series of

“incremental step[s]” with which an agency may

“whittle away” at a “massive problem[]” “over time.”

Id. at 524-26. It would “doom most challenges to

regulatory action|{s],” the Court explained, if their

incremental nature itself foreclosed judicial review.

Id.

Claims seeking to impose individual lability,

however, stand on an entirely different footing. A

court is not a regulator and may not enter relief

against a particular defendant where the plaintiff's

injury is not traceable to that defendant and where

relief against the defendant would not redress that

injury. Where, as here, the plaintiffs are instead

seeking each defendant’s “share” of a set of broader

reductions they desire from a larger category of

entities, including non-parties, supra p. 14, and the

claimed injuries cannot plausibly be redressed by

relief against any of these defendants individually (or

even collectively), the plaintiffs have no standing.

See Lujan, 504 U.S. at 560-61.

2. The Second Circuit's decision also is

inconsistent with cases from other circuits addressing

the “contributor” standing theory in the context of the

Clean Water Act. These cases, although relied upon

by the Second Circuit, see Pet. App. 69a-72a, actually

confirm that the plaintiffs lack standing.

The Clean Water Act cases, drawing on the Third

Circuit’s opinion in Powell Duffryn, hold that, when a

defendant has’ discharged a_ pollutant in

concentrations greater than allowed by its permit,” a

court can presume for purposes of standing that the

defendant’s emissions likely contributed to any

harms of a type generally attributed to that pollutant

that occur in the same waterway. 913 F.2d at 71-72.

In particular, the cases establish a threshold three-

part test for standing in a “contributor” case,

requiring a plaintiff to “show[] that a defendant has

(1) discharged some pollutant in concentrations

greater than allowed by its permit (2) into a

waterway in which the plaintiffs have an interest

that is or may be adversely affected by the pollutant

and that (3) the pollutant causes or contributes to the

kinds of injuries alleged by the plaintiffs.” Jd.; see

also, e.g., Friends of the Earth, Inc. v. Gaston Copper

Recycling Corp., 204 F.3d 149, 161 (4th Cir. 2000) (en

banc) (adopting Powell Duffryn); Sierra Club v. Cedar

Point Oil Co., 73 F.3d 546, 558 & n.24 (5th Cir. 1996)

(same).

The Second Circuit acknowledged that’ the

defendants’ emissions here do not exceed levels set by

federal permit—federal law currently imposes no

relevant restrictions on their emissions—and

therefore the first prong of the Powell Duffryn test

could not be met. Pet. App. 70a-7la. Nevertheless, it

held that Powell Duffryn still supported standing

because “!t]he first prong is inapplicable [when] there

is no statute governing carbon dioxide emissions.” /d.

at 71a.

This conclusion is plainly inconsistent with Powell

Duffryn and other Clean Water Act opimons. Those

opinions explained that they were defining the outer

bounds of standing under Article III, see Gaston

Copper, 204 F.3d at 152 (noting that the Clean Water

Act confers standing “to the full extent allowed by the

Constitution”), and found standing in those cases

only because the defendant’s alleged discharge

exceeded federally mandated limits, allowing the

courts to presume that the challenged discharge

could have “caused” related injuries in the relevant

area. E.g., Cedar Point, 73 F.3d at 557; Powell

Duffryn, 913 F.2d at 72. The lack of an emissions

limit does not render the prerequisite inapplicable, as

the Second Circuit suggested, but rather means that

the prerequisite is not satisfied and that standing

therefore caiinot be established based on mere

“contribution.” See, e.g., Powell Duffryn, 913 F.2d at

72-73; see also Kivalina, 663 F. Supp. 2d at 879-80 &

n.7 (“The tripartite test articulated in Powell

Duffryn ... is stated in the conjunctive, not the

disjunctive as concluded by the AEP court.... [I]t is

illogical to conclude that the mere contribution of

greenhouse gases into the atmosphere is sufficient to

establish that a plaintiffs injury is fairly traceable to

a defendant’s conduct.”). Indeed, to interpret Powell

Duffryn to support standing in the absence of an

alleged statutory violation ignores’ that the

fundamental basis for the presumption of causation

applied in that opinion—indeed, the sole basis—was

that Congress had defined certain levels of discharge

as harmful, allowing courts to infer that discharges

above that level “cause” any harms that are

associated with that pollutant and that are suffered

by entities in the relevant geographic area. 913 F.2d

at 68-72; accord Massachusetts, 549 U.S. at 516

(noting that Congress can affect constitutional

standing analysis in particular classes of cases by

exercising its “power to define injuries and articulate

chains of causation that will give rise to a case or

controversy where none existed before”).

The decision by the court of appeals to extend

contributor standing to the claims at _ issue

dramatically expands the availability of private

litigation asserting claims based on any alleged

“contribution” to global warming and_ seeking

imposition of a judicially-fashioned series of

piecemeal regulatory regimes. This Court should

review this unprecedented extension of standing in

this exceptionally important area of law and policy.

B. Federal Common Law Does Not Support

A Climate Change Nuisance Cause Of

Action.

The Second Circuit upheld the claims in this case

under federal common law even though they have no

basis in any federal statute and, indeed, address a

subject—carbon dioxide regulation—that is separate-

ly addressed by the comprehensive legislative scheme

of the Clean Air Act. The consequence of this holding

is that, while EPA is actively exercising its authority

to regulate greenhouse gas emissions under the

Clean Air Act, courts will be addressing precisely the

same questions “through application of vague and

indeterminate nuisance concepts and maxims of

equity jurisprudence.” Milwaukee IT, 451 U.S. at 317.

This approach conflicts with Milwaukee II and recent

decisions of this Court and other courts delineating

the narrowly circumscribed scope of federal common

law.

1. In Milwaukee I/, this Court held that a federal

common law “nuisance” claim to enjoin. trans-

boundary water pollution had been displaced by the

“comprehensive legislative scheme” of the Clean

Water Act. The Court emphasized that federal

common law may be invoked only in “few and

restricted’ instances,” and only where “the Court is

compelled to consider federal questions ‘which cannot

be answered from federal statutes alone.” Jd. at 313-

14 (citations omitted); see also id. at 314 (“{[W]hen

Congress addresses a question previously governed

by a decision rested on federal common law the need

for such an unusual exercise of lawmaking by federal

courts disappears.”). The Court noted that “[t]he

invocation of federal commor law ... in the face of

congressional legislatien ... is peculiarly inappropri-

ate in areas as complex as water pollution control,”

the problems of which are “particularly unsuited to

the [ad hoc adjudicative] approach inevitable under a

regime of federal common law.” Id. at 325.

The same is true of the claims in this case. Carbon

dioxide is an “air pollutant” within the meaning of

the Clean Air Act, see Massachusetts, 549 U.S. at 532

(citing 42 U.S.C. § 7602(g)), and the Act has been

interpreted to provide EPA with authority to consider

restrictions on greenhouse gas emissions from new

and existing sources, including “stationary sources”

in categories that include those of these defendants.

See 75 Fed. Reg. 31514. Accordingly, through the

Clean Air Act, Congress has established a legislative

scheme that “speaks directly” to the alleged problem

identified in the complaint, rendering resort to

federal common law not only unnecessary but

improper. See Milwaukee II], 451 U.S. at 314, 325;

see also Middlesex County Sewage Auth. v. Natl Sea

Clammers Ass'n, 453 U.S. 1, 10, 21 (1981).

The Second Circuit recognized that the Clean Air

Act provides EPA with authority to regulate carbon

dioxide emissions, but held that the Act does not

displace federal common law claims because EPA had

not fully exercised that authority. Pet. App. 137a-

142a. The relevant question in assessing displace-

ment, however, is not whether or to what extent an

agency has exercised its regulatory authority but

whether Congress has addressed the subject in a

legislative scheme. See Milwaukee II, 451 U.S. at

314, 325. Once Congress legislates on the subject and

delegates authority to an agency to make regulatory

decisions implementing Congress’s basic policy

choices, federal common law claims are displaced

regardless of whether and how the agency chooses to

exercise its authority. Jd. As this Court explained in

Milwaukee II, “[djemanding specific regulations of

general applicability before concluding that Congress

has addressed the problem to the exclusion of federal

common law asks the wrong question. The question

is whether the field has been occupied, not whether it

has been occupied in a particular manner.” /d. at

324.

Likewise here, the Clean Air Act delegates

regulatory authority over carbon dioxide emissions to

EPA, and thus displaces federal common law claims

addressing those emissions without regard to

whether or how the agency has exercised its

authority. To hold, as the Second Circuit did, that

there are still “interstices” for courts to “fill,” Pet.

App. 37a, is “no different from holding that the

solution Congress chose is not adequate. This [a

court] cannot do.” Illinois v. Outboard Marine Corp.,

680 F.2d 473, 478 (7th Cir. 1982).

Indeed, the First Circuit previously rejected

precisely the theory that the Second Circuit embraced

here. In Mattoon v. City of Pittsfield, 980 F.2d 1 (1st

Cir. 1992), the First Circuit held that federal common

law nuisance claims by city residents who had

allegedly become ill from drinking contaminated

water were displaced by the Safe Drinking Water Act

(““SDWA”), 42 U.S.C. §§ 300f et seg. 980 F.2d at 2-5.

Relying on Milwaukee IT, the court found that the

SDWA “indicates that Congress meant to reserve the

governance of public drinking water standards to

federal administrative regulation rather than [nui-

sance law].” Jd. at 4-5. The First Circuit expressly

rejected the argument—the same presented by the

plaintiffs in this case—that their common law actions

were not displaced because “EPA did not regulate

[the pertinent type of] contamination,” id. at 5,

explaining that “[t]he comprehensiveness of the

legislative grant is not diminished, nor is the

congressional intent to occupy the field rendered

unclear, merely by reason of the regulatory agency’s

discretionary decision to exercise less than the total

spectrum of regulatory power with which it was

invested.” Jd.; accord Illinois, 680 F.2d at 478.

Moreover, while the displacement inquiry turns on

Congress’s decisions—and not EPA’s—EPA’s actions

confirm there is no room here for judge-made

common law. EPA has formally found that carbon

dioxide emissions “endanger” the public and has

promulgated regulations under the Clean Air Act. It

has imposed limits on greenhouse gas emissions by

motor vehicles, see 75 Fed. Reg. 25324 (effective Jan.

2, 2011), and established a permitting program for

construction or modification of “stationary sources” of

greenhouse gas emissions, including facilities in

categories of sources that encompass those owned or

operated by these defendants, see 75 Fed. Reg. 31514.

Those regulations are subject to judicial review under

the Clean Air Act, and there is no basis for a court to

make separate, competing assessments under tort

law.

This was, in fact, the holding of the Fourth Circuit

in a recent decision. In North Carolina v. TVA, the

court held that common law nuisance claims brought

by a State seeking to limit emissions of certain air

pollutants by facilities operated by TVA (also a

defendant here) were preempted by the “compre-

hensive” scheme of the Clean Air Act. 2010 WL

2891572, at *3. Noting that “{t]he contrast between

the defined standards of the Clean Air Act and an ill-

defined omnibus tort of last resort could not be more

stark,” the court concluded that “Congress in the

Clean Air Act opted rather emphatically for the

benefits of agency expertise in setting standards of

emissions controls, especially in comparison with ...

judicially managed nuisance decrees,” and thus the

common law claims (in that case, brought under state

law) were preempted. Jd. at *7, *9. These consider-

ations, which supported preemption of the state

common law claims in North Carolina, confirm

displacement of the federa] common law claims here.

2. To imply a new common law cause of action to

address climate change, when no statute supports

that claim, also reflects a fundamental misunder-

standing of the nature of federal common law. The

precedent on which the Second Circuit relied

originated more than a century age see, e.g.,

Missouri v. Illinois, 180 U.S. 208 (1901), when the

Constitution was thought to preclude any branch of

government other than the judiciary from addressing

interstate pollution and federal common law

remained a “brooding omnipresence,” see, e.g., United

States v. E.C. Knight Co., 156 U.S. 1 (1895); see also

Sosa v. Alvarez-Machain, 542 U.S. 692, 722 (2004).

Even then, the Court stressed that such claims must

be examined with “caution,” Georgia v. Tenn. Copper

Co. 206 U.S. 230, 237 (1907), and that it would

recognize only “some such demands,” id. (emphasis

added). Indeed, it was only “a public nuisance of

simple type” that could be the subject of such common

law actions. North Dakota v. Minnesota, 263 U.S.

365, 374 (1923).

Thus, all of those cases involved immediately

noxious or harmful substances that caused severe,

localized harms directly traceable to an out-of-state

source. The claims here—which allege that the

defendants’ emissions of carbon dioxide combine with

emissions from countless other activities around the

globe that have been accumulating for centuries to

create a worldwide problem—bear no resemblance to

those cases or any other previous tort claim. To state

the obvious, they are not of a “simple type.”

The Court’s more recent jurisprudence underscores

that any federal common law authority over

“nuisance” that may remain is tightly constrained,

and that courts may not use that “limited” and

“restricted” authority to make significant policy

decisions. Tex. Indus. v. Radcliff Materials, Inc., 451

U.S. 630, 640 (1981). Federal courts therefore

cannot, for example, create a federal common law

right to contribution in antitrust actions because such

a right is “a matter of high policy for resolution

within the legislative process.” Jd. at 647. Nor may

courts design federal common law tort standards for

advisers to federally-insured thrift institutions,

because weighing the relevant factors is “for those

who write the laws, rather than for those who

interpret them.” O’Melveny & Myers v. FDIC, 512

U.S. 79, 89 (1994).

The Second Circuit’s holding that wherever

“regulatory gaps exist ... common law fills the

interstices,” Pet. App. 37a, and that courts may

therefore create federal common law to govern

resolution of the sweeping and consequentiai policy

issues raised by global climate change, departs

dramatically from this jurisprudence. Cf.

Massachusetts, 549 U.S. at 532-34 (upholding right of

action when claims were brought pursuant to

statutory cause of action created by Congress).

Review by this Court is necessary to clarify the

limited nature of federal common law, and to confirm

that, where Congress has addressed a subject by

delegating responsibility to an administrative agency,

a court may not assume common law authority over

the same subject matter, regardless of whether it

may view the agency’s execution of that responsibility

as incomplete or inadequate.

C. This Case Presents Non-Justiciable Po-

litical Questions.

A claim presents non-justiciable political questions

if its adjudication would not be governed by

“judicially discoverable and manageable standards”

or would require “an initial policy determination of a

kind clearly for non-judicial discretion.” Baker v.

Carr, 369 U.S. 186, 217 (1962). The Second Circuit

held that the claims in this case, premised on the

allegations that these defendants’ emissions are

“unreasonable,” are justiciable because courts could

determine the “reasonable” level of emissions by

applying the Restatement (Second) of Torts.

But invoking the Restatement serves only to

highlight the problem rather than solve it. The

Restatement provides that courts in nuisance actions

are to “weigh|] ... the gravity of the harm against the

utility of the conduct.” Restatement (Second) of

Torts, § 821B cmt. e. To apply such a standard to a

climate change case and define a “reasonable”

emissions level for these five utilities, a court would

need not only to assess any potential environmental

benefits that might result from imposing caps, but

also to compare the social and economic value of the

services these defendants provide, as well as services

provided by all the other pertinent industry sectors

that allegedly contribute to global climate change

(Qancluding manufacturing, transportation, agri-

culture, petroleum, chemical, and many others).

The law provides no “right answer” to these

questions: they involve policy tradeoffs that turn on

how the public values different potential economic,

social, and environmental risks and benefits. North

Carolina, 2010 WL 2891572, at *7 (“[W]hile public

nuisance law doubtless encompasses environmental

concerns, it does so at such a level of generality as to

provide almost no standard of application.”). These

are precisely the kinds of decisions that are reserved

for the political branches and that cannot

legitimately be made by the judiciary in the first

instance.

1. The Second Circuit found that this case did not

present a political question because the claims are

framed as common law “nuisance” actions, which

traditionally have been adjudicated by courts under

the “reasonableness” standard. Pet. App. 27a-34a.

This conclusion—that the justiciability of a claim

may be judged by its title—conflicts with this Court’s

approach to the political question doctrine.

Baker recognized that, to assess whether a claim

presents a political question, courts must engage in a

“discriminating inquiry into the precise facts and

posture of the particular [claim].” 369 U.S. at 217.

The relevant question is not whether the suit relies

superficially on commonly recognized causes of action

or standards, but whether one or more of the

particular issues that must be resolved would involve

the judiciary in matters properly reserved for the

political branches. The Second Circuit, in concluding

6 Indeed, the fundamental importance and sensitivity of those

tradeoffs are among the many reasons Congress has properly

considered adopting new legislation on climate change, rather

than relying upon the existing provisions of the Clean Air Act

and the EPA.

that the claims in this case were justiciable because

they are framed as “nuisance” claims and “nuisance”

claims are_ generally justiciable, “essentially

confus[ed] a label with an argument.” Laurence H.

Tribe, et al., Wash. Legal Found., Critical Legal

Issues Series No. 169, Too Hot for Courts To Handle:

Fuel Temperatures, Global Warming, and the

Political Question Doctrine 13-14 (Jan. 2010) (noting

that “the political question doctrine is about more

than wordplay’).

It is clear, when one conducts the “discriminating

inquiry” required by Baker, that the claims in this

case would be governed not by “judicially discoverable

and manageable standards” but instead by “policy

determination{s] of a kind clearly for non-judicial

discretion.” 369 U.S. at 216-17; see Kivalina, 663 F.

Supp. 2d at 874-77. Because climate change is a

global phenomenon, allegedly caused by centuries of

global accumulations of carbon dioxide and other

greenhouse gases, to determine a “reasonable”

emissions level for a single defendant, a court would

first need to determine the globally “reasonable” level

of emissions in light of the global risks of climate

change, and the global costs and benefits of

emissions-producing activities and _ associated

reduction measures. Moreover, even if the court

could determine a “reasonable” global emissions level,

it would then need to decide the “reasonable”

emissions level for these particular defendants,

requiring it to tailor emissions levels on a nation-by-

nation, industry-by-industry (if not entity-by-entity

and facility-by-facility) basis by weighing the gravity

of harm to the plaintiffs against the utility of each

defendant’s conduct. With no “principled” or

“reasoned” standards to guide its decision, the court

would necessarily rely on “ad hoc” and therefore

inherently arbitrary policy judgments. See Vieth v.

Jubelirer, 541 U.S. 267, 278 (2004) (plurality); North

Carolina, 2010 WL 2891572, at *7 (“If we are to

regulate smokestack emissions by the same

[nuisance] principles we use to regulate prostitution,

obstacles in highways, and bullfights, we will be hard

pressed to derive any manageable criteria.”) (citation

omitted).

The decision in Massachusetts confirms that these

claims present non-justiciable political questions.

Massachusetts addressed a provision in the Clean Air

Act requiring EPA to set “standards applicable to the

emission of any air pollutant” which in EPA’s

“judgment cause[s], or contribute[s] to, air pollution

which may reasonably be anticipated to endanger

public health or welfare.” 549 U.S. at 532-34 (quoting

42 U.S.C. § 7521(a)(1)). Because at that time EPA

had not yet undertaken to evaluate the statutory

“endangerment” criterion in_ the’ context of

greenhouse gases, and had failed to ground its

decision to deny the rulemaking petition at issue in

considerations established by the statute, this Court

remanded the decision to EPA for further

consideration in light of the Court’s construction of

the governing statute. /d. at 534-35.

The claim in Massachusetts was justiciable only

because Congress had established a_ statutory

standard governing the agency’s conduct, by which

the Court could gauge the agency’s compliance with

the statute without itself weighing and resolving the

merits of the policy considerations that necessarily

underlie that statutory standard. /d. at 516. Indeed,

with respect to the policy considerations identified by

EPA as counseling against regulation, the Court

acknowledged that it had “neither the expertise nor

the authority to evaluate these policy judgments.” /d.

at 533-34 (referring to a “laundry list” of policy

judgments that would be involved in assessing such a

claim). These are the very sorts of policy consider-

ations that would have to be addressed if the claims

in this case were adjudicated.

2. The Second Circuit also held that, because

Congress could displace through legislation any

judicially-imposed restrictions on carbon dioxide

emissions, “there is no need for the protections of the

political question doctrine.” Pet. App. 41a. As

discussed above, see supra pp. 20-24, Congress

already has done precisely that. In any case, the

Second Circuit’s holding is not only unprecedented,

but conflicts with this Court’s decision in Vieth.

In Vieth, this Court held that courts could not

adjudicate claims challenging a State legislature's

“political gerrymandering” in the drawing of

congressional legislative districts due to the absence

of “judicially discoverable and manageable

standards.” 541 U.S. at 278-80; see also id. at 307-08

(Kennedy, J., concurring in the judgment). The

plurality opinion noted that it was “significant” that

the Constitution provides Congress with authority to

“make or alter” legislative districts, meaning that

Congress could by legislation displace a_ district

drawn by a State (or one re-drawn by a court in

response to litigation) if it disagreed with the

district’s contours or purpose. Jd. at 275. Congress’s

authority to address this issue further confirmed that

it was properly reserved for the political branches.

See td. at 285.

The Second Circuit turned this principle on its

head. It found that, because Congress is empowered

to address carbon dioxide emissions, and could

overturn any limit established by the judiciary in a

particular case, the political question doctrine could

not apply. See Pet. App. 36a-4la. In other words,

according to the Second Circuit, an issue that can be

addressed by the political branches cannot be a

political question.

Neither this Court nor any other has ever

suggested that the political question doctrine is

inapplicable simply because Congress could reverse a

judicially-adopted policy, or that federal courts have

license to exercise full legislative and _ political

authority unless “vetoed” by Congress. The Second

Circuit’s re-formulation of the political question

doctrine warrants this Court’s review.

Il. THE JUSTICIABILITY OF CLIMATE

CHANGE LAWSUITS UNDER FEDERAL

COMMON LAW IS OF EXTRAORDINARY

NATIONAL IMPORTANCE.

Review is warranted in light of the extraordinary

significance of these issues. The Court granted

certiorari in Massachusetts v. EPA because of those

issues “unusual impc ance.” 549 U.S. at 506. Its

decision then defined the standards and the process

through which federal policy ir this area would be

developed. Under Massachusetts, EPA is charged

with making regulatory decisions addressing the

matter under the Clean Air Act, and parties may

then obtain judicial review of its actions pursuant to

settled standards of administrative law. The decision

below, however, establishes a separate, parallel track

for judges to decide how to regulate greenhouse gases

under the most general and open-ended tort

principles, at the behest of virtually any public or

private plaintiff claiming injury relating to climate

change. That parallel track would bypass entirely

the procedural and substantive requirements of the

Clean Air Act, relying instead on judge-made common

law to impose liability and set emissions levels. The

court of appeals’ decision, if allowed to stand, “would

encourage courts to use vague public nuisance

standards to scuttle the nation’s carefully created

system for accommodating the need for energy

production and the need for clean air,” resulting in a

“balkanization of clean air regulations and a confused

patchwork of standards, to the detriment of industry

and the environment alike.” North Carolina, 2010

WL 2891572, at *1; see also id. at *16 (“[W]Je are

unwilling to sanction the least predictable and the

most problematic method for resolving interstate

emissions disputes, a method which would chaotically

upend an entire body of clean air law ....”).

The court of appeals acknowledged that

“fashion[ing] a comprehensive and _ far-reaching

solution to global climate change” would at least

“arguably” fall “within the purview of the political

branches.” Pet. App. 25a-26a. It downplayed the

impact of its own decision, however, as involving only

“six ... plants.” Jd. at 26a. But the complaint

actually identified dozens of facilities operated by

these defendants in more than 20 States. See supra

note 2. An order directing emissions reductions

would affect the entire electricity generating industry

throughout multiple regions of the country and

transform the manner and cost of supplying

electricity to millions of individuals and businesses.

Even if the defendants in this case were the only

parties whose economic activities were at issue, the

potential impact on them and their customers alone

would justify this Court’s review of the lower court’s

decision.

Further, there is nothing in the Second Circuit’s

analysis that limits its impact to these particular

defendants. Under the plaintiffs’ theory, all

enterprises on the planet are contributors to, and

therefore share responsibility for, global climate

change, and thus all are potential defendants in this

or any future climate change lawsuit. The three

other such cases that were filed after this one named

dozens of defendants from the oil, transportation,

chemical, and coal industries; the range of other

potential industrial, commercial, and agricultural

defendants is virtually limitless. The Second

Circuit’s decision thus sets a precedent that

threatens the basic operations of the broadest

possible spectrum of the nation’s businesses.

The prospect of claims seeking damages for past

emissions heightens the risks and uncertainties for

those businesses even further, and increases the lure

for plaintiffs to bring more such cases. Each of the

other climate change cases, see supra pp. 8-10,

demands substantial damages. And each would

require, as here, that a court (or jury) determine a

“reasonable” emissions level in the absence of any

statutory standard. Indeed, while the ostensible

focus of those other cases is upon compensation for

alleged past harms rather than _ regulatory

injunctions of the type sought by the plaintiffs below,

“regulation can be as effectively exerted through an

award of damages as through some form of

preventive relief. The obligation to pay compensation

can be, indeed is designed to be, a potent method of

governing conduct and controlling policy.” Cipollone

v. Liggett Group, Inc., 505 U.S. 504, 521 (1992)

(plurality) (citation omitted).

The growing number of cases invoking common law

tort theories that seek to impose liability for climate

change further demonstrates the urgency of certio-

rari. Such cases will only expand and multiply if the

Second Circuit’s decision is allowed to stand. And,

there are a host of policy and advocacy organizations

that are or may become dissatisfied with the pace or

content of action by Congress or EPA, and that will

see common law litigation in this and other contexts

as a way to circumvent political or legal constraints

on the legislative and administrative processes.

Others will perceive industry defendants as “deep

pockets” to pursue for damages under the same

theories. The prospect of federal courts setting

nationwide emissions policy—indeed, of different

federal courts setting conflicting emissions policies—-

on an ad hoc, case-by-case basis under the aegis of

federal common law, at the same time that

administrative processes and diplomatic negotiations

by the political branches are addressing the same

issues, necessitates this Court’s review.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

F. WILLIAM BROWNELL

NORMAN W. FICHTHORN

ALLISON D. Woop

HUNTON & WILLIAMS LLP

1900 K Street, N.W.

Washington, D.C. 20006

(202) 955-1500

Counsel for Petitioner

Southern Company

SHAWN PATRICK REGAN

HUNTON & WILLIAMS LLP

200 Park Avenue

52nd Floor

New York, N.Y. 10166

(212) 309-1000

Counsel for Petitioner

Southern Company

Respectfully submitted,

PETER D. KEISLER*

CARTER G. PHILLIPS

DAVID T. BUENTE JR.

QUIN M. SORENSON

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

pkeisler@sidley.com

(202) 736-8000

Counsel for Petitioners

MARTIN H. REDISH

NORTHWESTERN

UNIVERSITY SCHOOL OF

LAW

375 East Chicago Avenue

Chicago, Illinois 60611

(312) 503-8545

Counsel for Petitioners

DONALD B. AYER

KEVIN P. HOLEWINSKI

JONES DAY

51 Louisiana Avenue, N.W.

Washington, D.C. 20001

(202) 879-3939

THOMAS E. FENNELL

MICHAEL L. RICE

JONES DAY

2727 North Harwood Street

Dallas, Texas 75201

(214) 220-3939

Counsel for Petitioner Xcel

Energy Inc.

August 2, 2010 * Counsel of Record

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS,

SECOND CIRCUIT

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

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,

AMERICAN ELECTRIC POWER COMPANY INC., AMERICAN

ELECTRIC POWER SERVICE CORPORATION, SOUTHERN

COMPANY, TENNESSEE VALLEY AUTHORITY, XCEL

ENERGY, INC., AND CINERGY CORPORATION,

Defendants-Appellees.

OPEN SPACE INSTITUTE, INC., OPEN SPACE CONSER-

VANCY, INC., AUDUBON SOCIETY OF NEW HAMPSHIRE,

Plaintiffs-Appellants,

AMERICAN ELECTRIC POWER COMPANY INC., AMERICAN

ELECTRIC POWER SERVICE CORPORATION, SOUTHERN

COMPANY, TENNESSEE VALLEY AUTHORITY, XCEL

ENERGY, INC., AND CINERGY CORPORATION,

Defendants-Appellees.

Argued: June 7, 2006

Decided: Sept. 21, 2009

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 corpora-

tions that own and operate fossil-fuel-fired power

plants in twenty states (collectively “Defendants”),

seeking abatement of Defendants’ ongoing contribu-

tions to the public nuisance of global warming.

Plaintiffs claim that global warming, to which De-

fendants 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 tempera-

ture 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 accele-

rate 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

* The Honorable Sonia Sotomayor, originally a member of the

panel, was elevated to the Supreme Court on August 8, 2009.

The two remaining members of the panel, who are in agree-

ment, have determined the matter. See 28 U.S.C. § 46(d); Local

Rule 0.14(2); United States v. Desimone, 140 F.3d 457 (2d

Cir.1998).

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; 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 with-

out 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

I. The States’ Complaint

II. The Land Trusts’ Complaint

III. The District Court’s Amended Opinion

and Order

Discussion

I. Standard of Review

Il. The Political Question Doctrine

A. Overview of the Political Question

Doctrine

B. Application of the Baker Factors

1. The First Baker Factor

2. The Second Baker Factor

3. The Third Baker Factor

4. The Fourth, Fifth, and Sixth

Baker Factors

III. Standing

A. The States’ Parens Patriae Standing

1. Background

2. Parens Patriae as a Species of

Article III Standing

3. Effect of Massachusetts v. EPA

4. States’ Allegations Satisfy the

Snapp Test

B. The States’ and the Trusts’ Article

III Proprietary Standing

316

318

319

320

321

323

324

326

330

331

332

334

335

336

338

339

1. Have Plaintiffs Sufficiently Alleged

Injury-in-Fact?

a. Current Injury

b. Future Injury

2. Causation

3. Redressability

IV. Stating a Claim under the Federal

Common Law of Nuisance

Standard of Review

The Federal Common Law of Nuis-

ance and the Restatement’s Defini-

tion of Public Nuisance

. Have the States Stated a Claim

under the Federal Common Law of

Nuisance?

1. Applying the Public Nuisance

Definition to the States

2. Defendants’ Arguments

a. Constitutional Necessity

b. The Character of the Alleged

Nuisance

May Non-State Parties Sue under

the Federal Common Law of Nuis-

ance? Analysis of Federal Common

Law of Nuisance Case Law

1. Federal Common Law of Nuisance

Case Law Concerning Non-State

Parties

a The Federal Government and

Municipalities as Plaintiffs

340

341

342

345

347

349

“49

350

b. Private Plaintiffs

c. Whether Municipalities and

Private Parties Can State a

Claim under the Federal Com-

mon Law of Nuisance—An

Examination of Milwaukee I’s

Footnote 6

The Restatement (Second) of

Torts’s Requirements for Main-

taining an Action for Public

Nuisance under § 821C

a.Can New York City Maintain a

Public Nuisance Suit under

§ 821C?

b.Can the Trusts Maintain a

Public Nuisance Suit under

§ 821C?

Have New York City and the

Trusts Stated a Claim for Public

Nuisance under § 821B?

Displacement of Plaintiffs’ Federal Com-

mon Law Claim

A. The Displacement Standard

B. Analysis

The Clean Air Act

a. Overview: the Clean Air Act

b. Analysis: Whether the Clean

Air Act Displaces Federal Com-

mon Law in the Area of

Greenhouse Gas Emissions from

Stationary Sources

361

364

366

367

378

2. All Legislation “on the Subject” of

Greenhouse Gases

a. Overview: the Legislative Land-

scape

b. Analysis: All Statutes “Touching”

on Greenhouse Gases

C. Displacement on Foreign Policy

Grounds

VI. Defendant Tennessee Valley Authority's

Separate Arguments

A. Background

B. Political Question Arguments

C. The Discretionary Function

Exception

VII. State Law Claims

Conclusion

BACKGROUND

1. The States’ Complaint

In July 2004, eight States—California, Connecticut,

lowa, 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,’

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

annuai emissions comprise “approximately one quarter

of the U.S. electric power sector’s carbon dioxide

emissions and approximately ten percent of all car-

bon dioxide emissions from human activities in the

United States.” Moreover, the rate of increase of

emissions from the U.S. electric power sector is

expected to rise “significantly faster than the pro-

jected growth rate of emissions from the economy as

a whole” from now until the year 2025. At the same

time, the States contend that Defendants have “prac-

tical, feasible and economically viable options for

reducing emissions without significantly increasing

the cost of electricity for their customers.”

The complaint cites reports from the Intergovern-

mental Panel on Climate Change and the U.S. Na-

' Although there are six named Defendants in the caption,

American Electric Power Service Corporation provides man-

agement and professional services on behalf of American

Electric Power Company, Inc., and does not generate carbon

dioxide emissions.

tional Academy of Sciences to support the States’

claims of a causal link between heightened green-

house gas concentrations and global warming, ex-

plaining that carbon dioxide emissions have persisted

in the atmosphere for “several centuries and thus

have a lasting effect on climate.” The States posit a

proportional relationship between carbon dioxide

emissions and injury: “The greater the emissions, the

greater and faster the temperature change will be,

with greater resulting injuries. The lower the level of

emissions, the smaller and slower the total tempera-

ture change will be, with lesser injuries.” The States

caution that the earth’s climate “can undergo an

abrupt and dramatic change when a ‘radiative forcing

agent’ causes the Earth’s climate to reach a tipping

point.” Carbon dioxide emissions constitute such a

radiative forcing agent due to its heat-trapping

effects, and therefore, as stated by the National

Academy of Sciences,

the unrestrained and ever-increasing emissions

of greenhouse gases from fossil fuel combustion

increases the risk of an abrupt and catastrophic

change in the Earth’s climate when a certain,

unknown, tipping point of radiative forcing is

reached. An abrupt change in the Earth’s climate

can transpire in a period as short as ten years.

Defendants’ emission of millions of tons of carbon

dioxide each year contribute to this risk of an

abrupt change in climate due to global warming.

As a result, the States predict that these changes will

have substantial adverse impacts on their environ-

ments, residents, and property, and that it will cost

billions of dollars to respond to these problems.

The complaint details the harms that will befall

the States, plaintiff by plaintiff. Not only does the

-10a

complaint spell out expected future injuries resulting

from the increased carbon dioxide emissions and con-

comitant global warming, but it also highlights cur-

rent injuries suffered by the States. As an example of

global warming having already begun to alter a

State’s climate, the complaint refers to the reduction

of California’s mountain snowpack, “the single

largest freshwater source, critical to sustaining water

to the State’s 34 million residents during the half of

each year when there is minimal precipitation.” The

complaint goes on to explain that

(djiminished summer runoff from mountain snow

will cause water shortages and disruptions to the

interrelated water systems and hydroelectric

plants on which the State’s residents rely. Flooding

will increase in California as a result of the

earlier melting. This process of reduced mountain

snowpack, earlier melting and associated flooding,

and reduced summer streamflows already has

begun.

Other current injuries resulting from climate changes

that the States allege they have already begun to

experience include warmer average temperatures,

later fall freezes and earlier spring thaws, and the

decrease in average snowfall and duration of snow

ccver on the ground in New England and California.

While the complaint does not articulate the impact of

these changes on the States currently, it does discuss

the effect of these changes in the context of future

injuries.

With regard to future injuries, the complaint cate-

gorizes in detail a range of injuries the States expect

will befall them within a span of 10 to 100 years if

global warming is not abated. Among the injuries

they predict are: increased illnesses and deaths

lla

caused by intensified and prolonged heat waves;

increased smog, with a concomitant increase in

residents’ respiratory problems; significant beach

erosion; accelerated sea level rise and the subsequent

inundation of coastal land and damage to coastal

infrastructure; salinization of marshes and water

supplies; lowered Great Lakes water levels, and

impaired shipping, recreational use, and hydropower

generation; more droughts and floods, resulting in

property damage; increased wildfires, particularly in

California; and the widespread disruption of ecosys-

tems, which would seriously harm hardwood forests

and reduce biodiversity. The States claim that the

impact on property, ecology, and public health from

these injuries will cause extensive economic harm.

Seeking equitable relief, the States seek to hold

Defendants jointly and severally liable for creating,

contributing to, or maintaining a public nuisance.

They also seek permanently to enjoin each Defendant

to abate that nuisance first by capping carbon dioxide

emissions and then by reducing emissions by a

specified percentage each year for at least ten years.

Il. The Land Trusts’ Complaint

Also in July 2004, three land trusts (“the Trusts”}—

the Open Space Institute (“OSI”), the Open Space

Conservancy (“OSC”), and the Audubon Society

of New Hampshire (“Audubon”)—filed a complaint

against the same six Defendants named in the States’

complaint. The Trusts are “nonprofit land trusts that

acquire and maintain ecologically significant and

sensitive properties for scientific and educational

purposes, and for human use and enjoyment. They

own nature sanctuaries, outdoor research laborato-

ries, wildlife preserves, recreation areas, and open

space.” OSI “was formed to help protect the natural

12a

environment by, among other means, preserving open

space and open land for recreation, conservation, and

resource and wildlife protection. OSI holds and

manages interests in real property in order to

preserve and enhance those properties’ natural and

ecological values.” OSC, organized and operated to

carry out the purposes of OSI, “holds and manages

lands, and conservation easements on lands, in order

to preserve and enhance those lands’ natural and

ecological values.” It has an inventory of land and

conservation easements “with a book value of approx-

imately $56 million.” Audubon “owns and preserves

more than 6,000 acres of sensitive land” throughout

New Hampshire as nature sanctuaries. “Tens of

thousands of people” visit the OSC/OSI properties

annually, and all of Audubon’s properties are open to

the public. Their complaint asserts that “|w]hile the

global warming to which Defendants contribute injures

the public at large, Plaintiffs suffer special injuries,

different in degree and kind from injuries to the

general public.” They then enumerate how the

ecological value of specific properties in which they

have an interest will be diminished or destroyed by

global warming. For example, the Trusts claim that

the accelerated sea level rise and coastal storm

surges caused by global warming would permanently

inundate some of their property, salinizing marshes

and destroying wildlife habitat. Increased smog

attributed to global warming would “diminish or

destroy the health of the forests that are central

ecological features of [their] properties” and cause the

loss or decline of other species inhabiting those

properties.

The Trusts also base their claims on the federal

common law of nuisance or, in the alternative, “the

statutory and/or common law of private and public

l3a

nuisance of each of the states where |Defendants|

own, manage, direct, and/or operate fossil fuel-fired

electric generating facilities.” They assert that reduc-

tions in Defendants’ “massive carbon dioxide emissions

will reduce all injuries and risks of injuries to the

public, and all special injuries to Plaintiffs, from

global warming.” Accordingly, the Trusts seek to

abate Defendants’ “ongoing contributions to global

warming.”

In many ways, the Trusts’ complaint mirrors that

of the States. It explains the heat-trapping effects of

carbon dioxide, identifies the significant emissions by

Defendants, outlines the current and projected impact

of global warming, and posits that a reduction of

emissions would prevent, diminish, or delay the

harmful effects of global warming. The principal

difference between the complaints lies in the nature

of the injury alleged, as the Trusts’ complaint details

the special injuries to their property interests that

would occur as a result of global warming. The Trusts

predict that global warming would “diminish or

destroy the particular ecological and aesthetic values

that caused [them] to acquire, and cause them to

maintain, the properties they hold in trust” and would

“interfer[e] with their efforts to preserve ecologically

significant and sensitive land for scientific and

educational purposes, and for human use and

enjoyment.”

III. The District Court’s Amended Opinion and Order

In district court, Defendants moved to dismiss both

complaints on several grounds. They asserted that

Plaintiffs failed to state a claim because: “(1) there is

no recognized federal common law cause of action to

abate greenhouse gas emissions that allegedly contri-

bute to global warming; (2) separation of powers

l4a

principles preclude this Court from adjudicating

these actions; and (3) Congress had displaced any

federal common law cause of action to address the

issue of global warming.” Am. Elec. Power Co., 406

F.Supp.2d at 270. They also contended that the court

lacked jurisdiction over Plaintiffs’ claims because:

“(1) Plaintiffs do not have standing to sue on account

of global warming and (2) Plaintiffs’ failure to state a

claim under federal law divests the court of § 1331

jurisdiction.” Jd. In addition, four of the defendants

moved to dismiss for lack of personal jurisdiction and

TVA moved to dismiss on the ground of the

discretionary function exception. /d.

In an Amended Opinion and Order, the district

court dismissed the complaints, interpreting Defen-

dants’ argument that “separation-of-powers principles

foreclosed recognition of the unprecedented ‘nuisance’

action plaintiffs assert” as an argument that the case

raised a non-justiciable political question. Jd. at 271.

Drawing on Baker v. Carr, 369 U.S. 186, 198, 82 S.Ct.

691, 7 L.Ed.2d 663 (1962), in which the Supreme

Court enumerated six factors that may indicate the

existence of a non-justiciable political question, the

district court stated that “[a]lthough several of these

[Baker v. Carr] indicia have formed the basis for

finding that Plaintiffs raise a non-justiciable political

question, the third indicator is particularly pertinent

to this case.” Am. Elec. Power Co., 406 F.Supp.2d at

271-72. The court based its conclusion that the case

was non-justiciable solely on that third Baker factor,

finding that Plaintiffs’ causes of action were “im-

possib(le] [to] decidje] without an initial policy deter-

mination of a kind clearly for nonjudicial discretion.”

Id. (quoting Vieth v. Jubelirer, 541 U.S. 267, 278, 124

S.Ct. 1769, 158 L.Ed.2d 546 (2004)). In the court’s

view, this factor counseled in favor of dismissal

15a

because it would not be able to balance those “inter-

ests seeking strict schemes to reduce pollution

rapidly to eliminate its social costs” against “interests

advancing the economic concern that strict schemes

[will] retard industrial development with attendant

social costs.” Jd. (quoting Chevron U.S.A., Inc. uv.

Natural Res. Def. Council, Inc., 467 U.S. 837, 847,

104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (internal

quotation marks omitted)). The district court con-

cluded that balancing those interests required

an “initial policy determination’ first having been

made by the elected branches to which our system

commits such policy decisions, viz., Congress and the

President.” Jd.

In addition, the district court rejected Plaintiffs’

arguments that they were presenting “simple nuisance

claim([s] of the kind courts have adjudicated in the

past,” observing that none of the other public nuisance

cases involving pollution “touched on so many areas

of national and international policy.” Jd. According to

the district court, the broad reach of the issues

presented revealed the “transcendently legislative

nature of this litigation.” Jd. If it were to grant the

relief sought by Plaintiffs—capping carbon dioxide

emissions—the court believed that it would be re-

quired, at a minimum, to: determine the appropriate

level at which to cap the emissions and the ap-

propriate percentage reduction; create a schedule to

implement the reductions; balance the implications of

such relief with the United States’ ongoing climate

change negotiations with other nations; and assess

and measure available alternative energy resources,

“all without an ‘initial policy determination’ having

been made by the elected branches.” Jd. at 272-73.

The district court pointed to the “deliberate inactions

of Congress and the Executive,” both in the domestic

l6a

and international arena “in response to the issue

of climate change,” and remonstrated Plaintiffs for

seeking to impose by “judicial fiat” the kind of relief

that Congress and the Executive had specifically

refused to impose. Jd. at 213-14. That fact underscored

for the court that the “initial policy determination

addressing global climate change” was an undertak-

ing for the political branches, which were charged

with the “identification and balancing of economic,

environmental, foreign policy, and national security

interests.” Jd. at 274.

Judgment entered on September 19, 2005, and

both groups of Plaintiffs timely appealed. Amici have

submitted briefs as well, but most of them are

untimely and we will therefore not consider them.’

DISCUSSION

1. Standard of Review

“We review de novo a district court’s grant of a

motion to dismiss for lack of subject matter jurisdic-

tion and for failure to state a claim upon which relief

may be granted.” Flores v. S. Peru Copper Corp., 414

* The Alliance of Automobile Manufacturers, et al. (“the

Alhance”), Unions for Jobs and the Environment, Sen. James M

Inhofe, et. al , and Law Professors filed amicus briefs in support

of Defendants’ arguments in the States’ case, and the Alaska

Inter-Tribal Councal and Akiak Native Community filed an

amicus brief in support of Plaintiffs’ arguments The same

groups filed as amici in the Trusts’ case (Sen. Inhofe did not file

a separate brief, he stated that the arguments contained in the

brief filed in the States’ case applied equally to the Trusts’ case).

Only the Alliance and Law Professors’ briefs complied with Fed.

R.App. P. 29(c), requiring amici to file their briefs “no later than

seven days after the principal brief of the party being supported

is filed.” We thus disregard the untimely briefs and consider

only the arguments in these two timely briefs.

17a

F.3d 233, 241 (2d Cir.2003). “For the purpose of such

review, this Court must accept as true all allegations

in the complaint and draw all reasonable inferences

in favor of the non-moving party.” Gorman v. Consol.

Edison Corp., 488 F.3d 586, 591-92 (2d Cir.2007)

(citing Taylor v. Vt. Dep’t of Educ., 313 F.3d 768, 776

(2d Cir.2002)).

If a complaint presents a non-justiciable political

question, the proper course is for us to affirm

dismissal. See 767 Third Ave. Assocs. v. Consulate

Gen. of Socialist Fed. Republic of Yugoslavia, 218

F.3d 152, 164 (2d Cir.2000) (“[W]here adjudication

would force the court to resolve ‘political questions,’

the proper course for the courts is to dismiss.”).

II. The Political Question Doctrine

A. Overview of the Political Question Doctrine

_ The political question doctrine is “primarily a func-

tion of the separation of powers,” Baker v. Carr, 369

U.S. 186, 210, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962),

“designed to restrain the Judiciary from inappropriate

interference in the business of the other branches of

Government,” United States v. Munoz-Flores, 495 U.S.

385, 394, 110 S.Ct. 1964, 109 L.Ed.2d 384 (1990),

where that other branch is better suited to resolve an

issue. This limitation on the federal courts was recog-

nized in Marbury v. Madison, 5 U.S. (1 Cranch) 137,

2 L.Ed. 60 (1803), in which Chief Justice Marshall

wrote, “[qluestions, in their nature political, or which

are, by the constitution and laws, submitted to the

executive, can never be made in this court.” Jd. at 170.

Consequently, “[o]ut of due respect for our coordinate

branches and recognizing that a court is incompetent

to make final resolution of certain matters, these

political questions are deemed ‘nonjusticiable.” Lane

18a

ex rel. Lane v. Halliburton, 529 F.3d 548, 557 (5th

Cir.2008). See generally Schneider v. Kissinger, 412

F.3d 190, 194-96 (D.C.Cir.2005) (describing Constitu-

tion’s textual allocation of authority among three

branches of government).

In an effort to “expose the attributes of the [politi-

cal question] doctrine—attributes which, in various

settings, diverge, combine, appear, and disappear in

seeming disorderliness,” Baker, 369 U.S. at 210, 82

S.Ct. 691, the Court set out six “formulations” which

“may describe a political question”:

Prominent on the surface of any case held to

involve a political question is found [(1)] a tex-

tually demonstrable constitutional commitment of

the issue to a coordinate political department; or

((2)] a lack of judicially discoverable and mana-

geable standards for resolving it; or [(3)] the

impossibility of deciding without an initial policy

determination of a kind clearly for nonjudicial

discretion; or [(4)] the impossibility of a court’s

undertaking independent resolution without

expressing lack of the respect due coordinate

branches of government; or [(5)] an unusual need

for unquestioning adherence to a political deci-

sion already made; or [(6)] the potentiality of

embarrassment from multifarious pronounce-

ments by various departments on one question.

Id. at 217, 82 S.Ct. 691. Baker set a high bar for

nonjusticiability: “Unless one of these formulations is

inextricable from the case at bar, there should be no

dismissal for non-justiciability on the ground of a

political question’s presence.” Jd. (emphasis added).

In a recent pronouncement on the political question

‘doctrine, the Supreme Court noted that the Baker

factors “are probably listed in descending order of

19a

both importance and certainty.” Vieth v. Jubelirer,

541 U.S. 267, 278, 124 S.Ct. 1769, 158 L.Ed.2d 546

(2004). Notwithstanding ample litigation, the Supreme

Court has only rarely found that a political question

bars its adjudication of an issue. See Rachel E.

Barkow, More Supreme Than Court? The Fall of the

Political Question Doctrine & the Rise of Judicial

Supremacy, 102 Colum. L.Rev. 237, 267-68 (2002)

(“In fact, in the almost forty years since Baker v. Carr

was decided, a majority of the Court has found only

two issues to present political questions, and both

involved strong textual anchors for finding that

the constitutional decision rested with the political

branches.”).

Defendants’ arguments touch upon the two most

highly litigated areas of the political question doctrine:

domestic controversies implicating constitutional is-

sues and the conduct of foreign policy. In the first

area, courts gencrally analyze the language of the

Constitution to determine whether adjudication of a

dispute is “textually committed” to the Executive or

Legislative branches. See, e.g., Nixon v. United States,

506 U.S. 224, 228, 238, 113 S.Ct. 732, 122 L.Ed.2d 1

(1993) (finding political question in case where federal

judge alleged that the Senate’s impeachment proce-

dures violated the Constitution’s Impeachment Clause

and the Senate, not the Court, had sole discretion to

choose impeachment procedures); Gilligan v. Morgan,

413 U.S. 1, 7, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1973)

(finding political question based on Article I, Section

8, Clause 16 of the U.S. Constitution in case where

the relief sought by former Kent State University

students over the training, weaponry, and orders of

the Ohio National Guard “embrace[d] critical areas of

responsibility vested by the Constitution in the Legis-

lative and Executive branches of the Government”);

20a

United States v. Sitka, 845 F.2d 43, 46 (2d Cir.1988)

(basing its ruling on the holding in Coleman v. Miller,

307 U.S. 433, 450-56, 59 S.Ct. 972, 83 L.Ed. 1385

(1939), that “procedures employed in the ratification of

constitutional amendments” presented non-justiciable

political questions, and affirming dismissal of tax-

payer’s challenge to allegedly improper ratification of

Sixteenth Amendment).

However, not all cases touching upon constitutional

issues that may also raise “an issue of great importance

to the political branches” and have “motivated partisan

and sectional debate,” present non-justiciable political

questions. U.S. Dep't of Commerce v. Montana, 503

U.S. 442, 458, 112 S.Ct. 1415, 118 L.Ed.2d 87 (1992).

In Montana, the Supreme Court wrote that, in invok-

ing the political question doctrine,

a court acknowledges the possibility that a con-

stitutional provision may not be judicially enfor-

ceable. Such a decision is of course very different

from determining that specific congressional

action does not violate the Constitution. That

determination is a decision on the merits that

reflects the exercise of judicial review, rather

than the abstention from judicial review that

would be appropriate in a case of a true political

question.

Id.; see also, e.g., Wesberry v. Sanders, 376 U.S. 1, 84

S.Ct. 526, 11 L.Ed.2d 481 (1964) (ruling that challenge

to state districting decisions relating to the election of

Members of Congress was justiciable).

The second—and more frequently litigated~ area

where cases “might pose special questions concerning

the judiciary’s proper role [is] when adjudication

might have implications in the conduct of this

nation’s foreign relations.” Kadic v. Karadzic, 70 F.3d

Zla

232, 248 (2d Cir.1995). The Supreme Court has

explained that “|tl}he conduct of the foreign relations

of our Government is committed by the Constitution

to the executive and lepislative—‘the political’—

departments of the government, and the propriety of

what may be done in the exercise of this political

power is not subject to judicial inquiry or decision.”

Oetjen v. Cent. Leather Co., 246 U.S. 297, 302, 38

S.Ct. 309, 62 L.Ed. 726 (1918). Baker summarized the

areas where federal courts have found non-justiciable

political questions in foreign relations matters, such

as “recognition of foreign governments,” “which nation

has sovereignty over disputed territory,” “recognition

of belligerency abroad,” determination of “a person’s

status as representative of a foreign government,”

and “|djates of duration of hostilities.” Baker, 369

U.S. at 212, 213, 82 S.Ct. 691; see, e.g., Johnson v.

Kisentrager, 339 U.S. 763, 789, 70 S.Ct. 936, 94 L.Ied.

1255 (1950) (challenging the President’s decision to

deploy troops in a foreign land); Jones v. United States,

137 U.S. 202, 212, 11 S.Ct. 80, 34 L.Ed. 691 (1890)

(“Who is the sovereign, de jure or de facto, of a

territory, is not a judicial, but a political, question,

the determination of which by the legislative and

executive departments of any government conclusively

binds the judges, as well as all other officers, citizens,

and subjects of that government.”); Whiteman v.

Dorotheum GmbH & Co., KG, 431 F.3d 57, 59-60 (2d

Cir.2005) (holding that deference to U.S. statement of

foreign policy interests urging: dismissal of claims

against foreign sovereign was appropriate where

Executive branch and U.S. Government had entered

agreements and therefore resolution of issue in alter-

nate international forum would be superior to federal

court litigation of issue); Jn re Austrian & German

Holocaust Litys., 250 F.3d 156, 164 (2d Cir. 2001)

22a

(holding that a district court order that “seemingly

requires the German legislature to make a finding of

legal peace and to do so before its summer recess”

improperly intruded into the Executive’s realm); 767

Third Ave. Assocs., 218 F.3d at 159-60 (determining

whether successor States succeeded to liabilities of

dissolved former State); Can v. United States, 14 F.3d

160, 162-63 (2d Cir.1994) (holding that a determina-

tion of title to blocked South Vietnamese assets

would require resolution of issues of state succession

and the President’s power to recognize foreign gov-

ernments, which were constitutionally committed to

the Executive branch).

In sum,

[tlhe political question doctrine excludes from

judicial review those controversies which revolve

around policy choices and value determinations

constitutionally committed for resolution to the

halls of Congress or the confines of the Executive

Branch. The Judiciary is particularly ill suited to

make such decisions, as ‘courts are fundamentally

underequipped to formulate national policies or

develop standards for matters not legal in nature.’

Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S.

221, 230, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986)

(quoting United States ex rel. Joseph v. Cannon, 642

F.2d 1373, 1379 (D.C.Cir.1981) (footnote omitted)).

Nevertheless, “[t]he political question doctrine must

be cautiously invoked,” Can, 14 F.3d at 163, and simply

because an issue may have political implications does

not make it non-justiciable, see Baker, 369 U.S. at

211, 217, 82 S.Ct. 691 (cautioning that the doctrine

“is one of ‘political questions, not one of ‘political

cases” and that, in the foreign relations sphere, “it is

error to suppose that «very case or controversy which

23a

touches foreign relations lies beyond judicial cogniz-

ance”). As the Fifth Circuit recently wrote, “(t]he

Baker analysis is not satisfied by ‘semantic cataloguing’

of a particular matter as one implicating ‘foreign

policy’ or ‘national security.’ Instead, Baker demands

a ‘discriminating inquiry into the precise facts and

posture of the particular case’ before a court may

withhold its own constitutional power to resolve cases

and controversies.” Lane, 529 F.3d at 558 (quoting

Baker, 369 U.S. at 216, 82 S.Ct. 691). This Court has

held that the “preferable approach is to weigh carefully

the relevant considerations on a case-by-case basis.”

Kadic, 70 F.3d at 249.

B. Application of the Baker Factors

As noted above, the district court found the third

Baker factor “particularly pertinent” to its “finding

that Plaintiffs raise a non-justiciable political question.”

Connecticut v. Am. Elec. Power Co., 406 F.Supp.2d

265, 272 (S.D.N.Y.2005). The court explained that an

“initial policy determination” by the elected branches

was required before it could adjudicate a global

warming nuisance claim. /d. (internal quotation marks

omitted). In buttressing its determination, the district

court characterized Plaintiffs’ arguments as “touch[ing]}

on so many areas of national and international

policy,” where the “scope and magnitude of the relief”

sought “reveal[] the transcendently legislative na-

ture of this litigation.” Jd. On appeal, Plaintiffs

contend that none of the Baker factors apply, while

Defendants assert that each Baker factor applies.

1. The First Baker Factor: Is There a Textually

Demonstrable Constitutional Commitment of

the Issue to a Coordinate Political Department?

This Court has described the first Baker factor as

the “dominant consideration in any political question

24a

inquiry.” Lamont v. Woods, 948 F.2d 825, 831 (2d

Cir.1991). The first factor “recognizes that, under the

separation of powers, certain decisions have been

exclusively committed to the legislative and executive

branches of the federal government, and are there-

fore not subject to judicial review.” McMahon uv.

Presidential Airways, Inc., 502 F.3d 1331, 1358-59

(11th Cir.2007).

Defendants define the issue in these two cases as

“whether carbon dioxide emissions . . . should be

subject to mandatory limits and/or reductions” and

argue that resolution of that issue is “textually com-

mitted to Congress by the Commerce Clause” as a

matter of “high policy.” Beyond this cursory reference

to “high policy,” Defendants fail to explain how the

emissions issue is textually committed to the Com-

merce Clause. We find this position insufficiently

argued and therefore consider it waived. See Norton

v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.1998)

(“Issues not sufficiently argued in the briefs are con-

sidered waived and normally will not be addressed on

appeal”).

Next, Defendants argue that “permitting these and

other plaintiffs to use an asserted federal common

law nuisance cause of action to reduce domestic

carbon dioxide emissions will impermissibly interfere

with the President’s authority to manage foreign

relations”; that “unilateral reductions of U.S. carbon

dioxide emissions would interfere with the President’s

efforts to induce other nations to reduce their

emissions”; and the court’s interjection in this arena

would usurp the President’s authority to “resolve

fundamental policy questions” that he is seeking to

solve through diplomatic means.

25a

Again, Defendants make conclusory statements but

provide no support for their argument in this section

of their brief. They do, however, shed some light on

these arguments in other parts of their brief. In their

Statement of the Case, they note that the Senate

urged President Clinton “not to sign any agreement

that would result in serious harm to the economy or

that did not include provisions limiting emissions by

developing nations.” In their discussion of displace-

ment, they cite H.R.Rep. No. 102-474, pt. 1, at 152

(1992), U.S.Code Cong. & Admin.News 1992, pp.

1954, 1975, which provides that mandatory emissions

measures should be undertaken “only in the context

of concerted international action,” and state that

three Presidents have worked “within the United

Nations framework and elsewhere to develop... an

effective and science-based response to the issue of

global warming.” Defendants conclude that “unilateral,

mandatory emissions reductions . . . will undermine

the nation’s multilateral strategy” and “reduce[ | the

bargaining leverage the President needs to imple-

ment a multilateral strategy by giving him less to

offer in exchange for reductions by other nations.”

It cannot be gainsaid that global warming poses

serious economic and ecological problems that have

an impact on both domestic politics and international

relations. Nevertheless, Defendants’ characterization

of this lawsuit as implicating “complex, inter-related

and far-reaching policy questions about the causes of

global climate change and the most appropriate

response to it” magnifies to the outer limits the

discrete domestic nuisance issues actually presented.

A result of this magnification is to misstate the issues

Plaintiffs seek to litigate. Nowhere in their com-

plaints do Plaintiffs ask the court to fashion a com-

prehensive and far-reaching solution to global cli-

26a

mate change, a task that arguably falls within the

purview of the political branches.* Instead, they seek

to limit emissions from six domestic coal-fired elec-

tricity plants on the ground that such emissions

constitute a public nuisance that they allege has

caused, is causing, and will continue to cause them

injury. A decision by a single federal court concerning

a common law of nuisance cause of action, brought by

domestic plaintiffs against domestic companies for

domestic conduct, does not establish a national or

international emissions policy (assuming that emis-

sions caps are even put into place). Nor could a court

set across-the-board domestic emissions standards or

require any unilateral, mandatory emissions reductions

over entities not party to the suit.* In contrast to

cases such as Whiteman v. Dorotheum GmbH & Co.

and In re Austrian & German Holocaust Litigation,

where courts have found political questions barring

adjudication, invocation of the political question

doctrine here is unwarranted because the relief for

which Plaintiffs pray applies in only the most tangen-

*In many of the cases where courts have found non-

justiciable political questions, plaintiffs sued the United States,

United States officials, or foreign government officials, thereby

directly challenging the foreign policy determinations at issue.

See, e.g. Schneider, 412 F.3d 190, Can, 14 F.3d 160 This case

presents at best an indirect challenge. See Lane, 529 F.3d at 560

(opining that the first Baker factor “is primarily concerned with

direct challenges to actions taken by a coordinate branch of the

federal government”) (emphasis added).

* The possibility that mandatory emissions reductions may be

imposed upon these defendants is quite different from “manda-

tory emissions reduction requirements on American industry”

that the Professors’ amicus bref views as a consequence of

adjudication.

27a

tial and attenuated way to the expansive domestic

and foreign policy issues raised by Defendants.”

In this common law nuisance case, “|t]he depart-

ment to whom this issue has been ‘constitutionally

committed’ is none other than our own—the Judiciary.”

Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44, 49

(2d Cir.1991); see also Me. People’s Alliance &

Natural Res. Def. Council v. Mallinckrodt, Inc., 471

F.3d 277, 286 (1st Cir.2006) (“[N]uisance principles

contribute heavily to the doctrinal template that un-

derbraces [environmental] statutes ... and the tasks

involved in adjudicating environmental cases are well

within the federal courts’ accustomed domain.”)

(internal citation omitted).

We find no textual commitment in the Constitution

that grants the Executive or Legislative branches

responsibility to resolve issues concerning carbon dio-

xide emissions or other forms of alleged nuisance.

Accordingly, we hold that the first Baker factor does

not apply.

2. The Second Baker Factor: Is There a Lack of

Judicially-Discoverable and Manageable Sta-

ndards for Resolving This Case?

“One of the most obvious limitations imposed by

{Article III, Section 1 of the Constitution] is that

judicial action must be governed by standard, by rule”

Vieth v. Jubelirer, 541 U.S. 267, 278, 124 S.Ct. 1769,

158 L.Ed.2d 546 (2004) (plurality opinion). Defendants

point to the complexities involved in pollution control

cases and assert that such intricacies “pale in com-

* We could envision a political question arising if, for

example, Plaintiffs sued the President directly, in an effort to

force him to sign international global warming treaties.

28a

parison to those presented here,” given the uncer-

tainties surrounding the precise effect of greenhouse

gas emissions on climate. Those uncertainties, Defen-

dants argue, are “mere preludes to the unmanageable

policy questions a court would then have to confront”

in adjudicating Plaintiffs’ claim, including: How fast

should emissions be reduced?; Should power plants or

automobiles be required to reduce emissions?; Who

should bear the cost of reduction?; and How are the

impacts on jobs, the economy, and the nation’s secu-

rity to be balanced against the risks of future harms?

Quoting City of Milwaukee v. Illinois, 451 U.S. 304,

317, 101 S.Ct. 1784, 68 L.Ed.2d 114 (1981) (“Mil-

waukee II”), Defendants assert that the “vague and

indeterminate nuisance concepts and maxims of

equity” gleaned from public nuisance cases or the

Restatement (Second) of Torts § 821B (1979)° provide

no guidance for resolving these unmanageable issues.

Defendants’ argument is undermined by the fact

that federal courts have successfully adjudicated

complex common law public nuisance cases for over a

century. The first cases involved States bringing

claims against other States, or against private parties

in other States, in the Supreme Court under its

original jurisdiction. For example, in 1901, the Su-

preme Court decided Missouri v. Illinois, 180 U.S.

208, 21 S.Ct. 331, 45 L.Ed. 497 (1901) (“Missouri I”),

a public nuisance case in which Missouri sued to

prevent Illinois from discharging sewage into a chan-

nel that emptied into the Mississippi River forty-

three miles above St. Louis, which Missouri feared

would make the water unfit for human, agricultural,

®* The Restatement (Second) of Torts § 821B(1) (1979) defines

a public nuisance as “an unreasonable interference with a right

common to the general public.” See Section IV(B), infra.

29a

or manufacturing purposes. The Court held that

Missouri could maintain a lawsuit for equitable relief

even before it actually sustained injury.’ Illinois later

began discharging sewage into the river. In Missouri

v. Illinois, 200 U.S. 496, 26 S.Ct. 268, 50 L.Ed. 572

(1906) (“Missouri IT’), Missouri brought a second suit

before the Court, seeking to enjoin the discharge on

the ground that it constituted a public nuisance. The

Court carefully appraised the sophisticated scientific

and expert evidence offered (such as whether the

typhoid bacillus could survive the waterborne journey),

weighed the equities, and concluded that Missouri

had not made its case, particularly with respect to

establishing injury and causation. Jd. at 522-26, 26

S.Ct. 268.

Another example of the federal courts’ masterful

handling of complex public nuisance issues concerned

an air pollution controversy. Between 1907 and 1916,

the State of Georgia appeared before the Supreme

Court on four different occasions in its suit against

Tennessee Copper Company and another copper

foundry, alleging that noxious emissions from the

’ The Court articulated a standard for granting an injunction

in a common law nuisance case:

We fully agree with the contention of defendants’ counsel

that it is settled that an injunction to restrain a nuisance

will issue only in cases where the fact of nuisance 1s made

out upon determinate and satisfactory evidence; that if the

evidence be conflicting and the injury be doubtful, that

conflict and doubt will be a ground for withholding an

injunction; and that, where interposition by injunction is

sought, to restrain that which it 1s apprehended will create

a nuisance of which its complainant may complain the

proofs must show such a state of facts as will manifest the

danger to be real and immediate.

Missour., 180 U S. at 248, 21 S.Ct. 331.

30a

plants were destroying forests, orchards, and crops in

Georgia. In the first action, the Court characterized

Georgia’s injuries as “analogous to torts” and adjudi-

cated the merits. Georgia v. Tenn. Copper Co., 206

U.S. 230, 237-39, 27 S.Ct. 618, 51 L.Ed. 1038 (1907).

Next, the Court assessed the adequacy of steps taken

by the defendants to abate the fumes and ordered

injunctive relief including a reduction of sulfur dioxide

emissions and total emissions to not more than 20

tons per day from April to October of each year and to

not more than 40 tons per day during the rest of the

year. Georgia v. Tenn. Copper Co., 237 U.S. 474, 474-78,

35 S.Ct. 631, 59 L.Ed. 1054 (1915). The Court then

discussed facts relevant to appropriate emissions

limitations. Georgia v. Tenn. Copper Co., 237 U.S.

678, 678-80, 35 S.Ct. 752, 59 L.Ed. 1173 (1915). In its

final decree, the Court set definitive emissions limits,

imposed monitoring requirements, and apportioned

costs between the defendants. Georgia v. Tenn.

Copper Co., 240 U.S. 650, 650-51, 36 S.Ct. 465, 60

L.Ed. 846 (1916). In adjudicating this dispute, the

Court evaluated the evidence, considered the magni-

tude of the injury, causation, and equitable factors,

and granted injunctive relief to Georgia, “satisfied, by

a preponderance of evidence, that the sulphurous

fumes cause and threaten damage on so considerable

a scale to the forests and vegetable life, if not to

health, within the plaintiff state, as to make out a

case within the requirements of [Missouri ITI).” Tenn.

Copper, 206 U.S. at 238-39, 27 S.Ct. 618.

These cases were among the first in a long line of

federal common law of nuisance cases where federal

courts employed familiar public nuisance precepts,

grappled with complex scientific evidence, and resolved

the issues presented, based on a fully developed

record. See, e.g., New Jersey v. City of New York, 283

3la

U.S. 473, 51 S.Ct. 519, 75 L.Ed. 1176 (1931) (seeking

to enjoin New York from dumping garbage into the

ocean and polluting New Jersey beaches and water);

North Dakota v. Minnesota, 263 U.S. 365, 44 S.Ct.

138, 68 L.Ed. 342 (1923) (seeking to enjoin, as public

nuisance, a Minnesota irrigation project that contri-

buted to flooding of North Dakota farmland); New

York v. New Jersey, 256 U.S. 296, 41 S.Ct. 492, 65

L.Ed. 937 (1921) (seeking to enjoin sewage discharge

into boundary waters and causing pollution);

Pennsylvania v. Wheeling & Belmont Bridge Co., 54

U.S. (13 How.) 518, 14 L.Ed. 249 (1851) (alleging

interference with navigation on Ohio River by low

bridge as constituting public nuisance). See also Illinois

v. City of Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31

L.Ed.2d 712 (1972) (“Milwaukee I”) (agreeing that

sewage discharge constituted public nuisance and

that case could still be adjudicated by federal courts

under federal common law because amendments to

Clean Water Act did not provide remedy).

Moreover, as a general matter, the Supreme Court

and this Court have often turned to the Restatement

(Second) of Torts for assistance in developing standards

in a variety of tort cases.° See, e.g., United States v.

Atl. Research Corp., 551 U.S. 128, 141, 127 S.Ct.

2331, 168 L.Ed.2d 28 (2007) (invoking Restatement

(Second) of Torts § 886A(2) in applying traditional

® In Field v Mans, 516 U.S. 59, 70, 116 S Ct. 437, 183 L Ed.2d

351 (1995), the Supreme Court characterized the Restatement

(Second) of Torts as “the most widely accepted distillation of the

common law of torts.” A torts compendium has described the

first and second Restatement of Torts as being “frequently

followed and applied by the courts. Each of these editions has

had a profound influence and serious impact on American tort

law.” 1 Stuart M. Speiser, Charles F. Krause & Alfred W. Gans,

The American Law of Torts 64 (Thomson West 2003).

32a

rules of equity when assessing liability in CERCLA

case); Anza v. Ideal Steel Supply Corp., 547 U.S. 451,

466-67, 126 S.Ct. 1991, 164 L.Ed.2d 720 (2006) (citing

Restatement for proximate cause and certainty of

damages); Higazy v. Templeton, 505 F.3d 161, 175 (2d

Cir.2007) (applying Restatement’s proximate cause/

superseding cause analysis in Bivens action);

Khulumani v. Barclay Nat'l Bank Ltd., 504 F.3d 254,

287-88 (2d Cir.2007) (per curiam) (Hall, J., concurring)

(adopting Restatement’s definition of aiding and

abetting in Alien Tort Claims Act case); Project Hope

v. M/V IBN SINA, 250 F.3d 67, 76 (2d Cir.2001)

(quoting Restatement (Second) of Torts § 879 for

proposition that “federal common law permits imposi-

tion of joint and several liability”); see also Common-

wealth Edison Co. v. United States, 271 F.3d 1327,

1353 (Fed.Cir.2001) (looking to Restatement for con-

tours and scope of common law nuisance). It is true

that the Restatement’s definition of public nuis-

ance—“an unreasonable interference with a right

common to the general public”—is broad. Restatement

(Second) of Torts § 821B. But Judge James Oakes,

sitting on the district court by designation, success-

fully applied the Restatement’s standard in a com-

mon law nuisance action brought by the United

States to reduce pollution of Lake Champlain by

vessels that transported oil, ordering a detailed

remedial plan. See United States v. Bushey & Sons,

363 F.Supp. 110, 120-21 (D.Vt.1973), affd without

opinion, 487 F.2d 1393 (2d Cir.1973); see also Cox v.

City of Dallas, 256 F.3d 281, 291 (5th Cir.2001)

(describing remedies available in nuisance actions by

citing Restatement (Second) of Torts §§ 821B and

821C, and explaining that nuisance actions were “the

common law backbone of modern environmental law”

(citation omitted)); Nai’l Sea Clammers Ass’n v. City

33a

of New York, 616 F.2d 1222, 1234 (3d Cir.1980),

vacated on other grounds, 453 U.S. 1, 101 S.Ct. 2615,

69 L.Ed.2d 435 (1981) (adopting Restatement definition

of public nuisance and observing that the Restate-

ment formulation “encompasses the injury alleged in

this case”). In Section IV(B), infra, we apply the

Restatement definition of public nuisance to the fed-

eral common law of nuisance and demonstrate that it

provides a workable standard.

Following the Restatement and common law tort

principles is consistent with the exigencies of common

law decision-making, which

proceeds through the incremental, analogical

application of broadly-stated principles, and .. .

is therefore not amenable to the formulation of

finely detailed rules in the manner of a regula-

tory code. .. . [T]he contextual nature and factual

sensitivity of common law judicial rulemaking

takes account of the “practical problems” that

can result from ill-designed legal rules, and the

flexibility of the common law process allows

those problems to be addressed and avoided as

they arise.

Khulumani, 504 F.3d at 290 (Hall, J., concurring).

Federal courts have applied well-settled tort rules

to a variety of new and complex problems. For

example, in Klinghoffer, a wrongful death case where

an American passenger on an ocean liner was killed

by Palestinian Liberation Organization (“PLO”) oper-

atives, this Court rejected the PLO’s argument that

the claim presented a non-justiciable political question

because it raised “foreign policy questions and political

questions in a volatile context |, i.e., international

terrorism,| lacking satisfactory criteria for judicial

34a

determination.” Klinghoffer, 937 F.2d at 49. This

Court looked beyond “|t|he fact that the issues before

us arise in a politically charged context,” discerned

that the actual cause of action was “an ordinary tort

suit, alleging that the defendants breached a duty of

care owed to the plaintiffs or their decedents,” and

concluded that the political implications of the suit

did not “convert what is essentially an ordinary tort

Suit into a non-justiciable political question.” Jd. With

regard to the standards employed to assess the

claims, this Court stated that “because the common

law of tort provides clear and well-settled rules on

which the district court can easily rely, this case does

not require the court to render a decision in the

absence of judicially discoverable and manageable

standards.” Jd. (internal quotation marks omitted).

Accordingly, we do not agree that there are no

judicially discoverable and manageable standards for

resolving this case. Well-settled principles of tort and

public nuisance law provide appropriate guidance to

the district court in assessing Plaintiffs’ claims and

the federal courts are competent to deal with these

issues. Defendants’ arguments to the contrary are

overstated. As noted above, Plaintiffs’ complaints do

not ask the district court to decide overarching policy

questions such as whether other industries or emission

sources not before the court must also reduce emissions

or determine how across-the-board emissions reduc-

tions would affect the economy and national security.

In adjudicating the federal common law of nuisance

claim pleaded here, the district court will be called

upon to address and resolve the particular nuisance

issue before it, which does not involve assessing and

balancing the kind of broad interests that a legisla-

ture or a President might consider in formulating

a national emissions policy. The question presented

35a

here is discrete, focusing on Defendants’ alleged

public nuisance and Plaintiffs’ alleged injuries. As the

States eloquently put it, “[t]hat Plaintiffs’ injuries are

part of a worldwide problem docs not mean Defen-

dants’ contribution to that problem cannot be ad-

dressed through principled adjudication.”

That the district court may be called upon to decide

‘ausation issues and apply a remedy does not remove

the case from the ambit of nuisance actions. Federal

courts have long been up to the task of assessing

complex scientific evidence in cases where the cause

of action was based either upon the federal common

law or upon a statute. They are adept in balancing

the equities and in rendering judgment. Sec, e.y.,

Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 545,

107 S.Ct. 1396, 94 L.Ed.2d 542 (1987) (““Environmen-

tal injury, by its nature, can seldom be adequately

remedied by money damages and is often permanent

or at least of long duration, ¢.e., irreparable. If such

injury is sufficiently likely, therefore, the balance of

harms will usually favor the issuance of an injunction

to protect the environment.”). The fact that a case

may present complex issues is not a reason for fed-

eral courts to shy away from adjudication; when a

court is possessed of jurisdiction, it generally must

exercise it. Cohens v. Virginia, 19 U.S. (6 Wheat.)

264, 404, 5 L.Ed. 257 (1821). Additionally, the fact

that this case is governed by recognized judicial

standards under the federal common law of nuisance

“obviates any need to make initial policy decisions of

the kind normally reserved for nonjudicial discretion”

and “further undermines the claim that such suits

relate to matters that are constitutionally committed

to another branch.” Kadic, 70 F.3d at 249. Defendants

are not entitled to dismissal based on the second

Baker factor.

36a

3. The Third Baker Factor: Is It Impossible to

Decide this Case Without an Initial Policy

Determination of a Kind Clearly for Nonjudi-

cial Discretion?

The district court relied upon the third Baker factor

in dismissing Plaintiffs’ complaints. It concluded that a

solution to the problems created by carbon dioxide

emissions must be global in nature and based on

domestic policy considerations—such as the need to

balance relevant environmental and economic interests

and the possible impact on national security—and

held that only the political branches are empowered

to act in such a context. Am. Elec. Power Co., 406

F.Supp.2d at 272-73. On appeal, Defendants contend

that the relevant policy decision is not, as Plaintiffs

argue, abatement of a nuisance. Instead, “{t]he missing

policy decision is whether to impose mandatory

greenhouse gas emissions limits and, if so, on whom,

in what manner and at what cost. No such...

decision can be found in statutes in which Congress

has called for additional study but declined to impose

such limits.” Defendants argue that the “very nature of

this phenomenon requires a comprehensive response.”

The district court found it significant that the

political branches had failed to supply an initial policy

decision because they had refused to regulate carbon

dioxide emissions. The court viewed the possibility of

any regulation coming out oi the courts as countering

the political branches’ refusal to act. Am. Elec. Power

Co., 406 F.Supp.2d at 273-74. The district court’s

reliance on a refusal to legislate results in a decision

resting on particularly unstable ground. The Supreme

Court has stated, in the context of displacement of

federal common law, that “Congress’s mere refusal

to legislate . . . falls far short of an expression of

37a

legislative intent to supplant the existing common

law in that area.” United States v. Texas, 507 U.S.

529, 535, 113 S.Ct. 1631, 123 L.Ed.2d 245 (1993). The

district court’s reasoning in this regard is inapposite

in a case making a federal common law of nuisance

claim where, if regulatory gaps exist, common law

fills those interstices. See generally Khulumani, 504

F.3d at 287 (citing U.S. v. Kimbell Foods, 440 U.S.

715, 727, 99 S.Ct. 1448, 59 L.Ed.2d 711 (1979)).

The holding in Milwaukee I accentuates that point.

In Milwaukee 1, the federal government had “enacted

numerous laws touching interstate waters,” including

the Federal Water Pollution Control Act and statutes

researching the aquatic environment. Milwaukee I,

406 U.S. at 101-02, 92 S.Ct. 1385. Because the

pollution abatement remedy sought by Illinois was

not “within the precise scope of remedies prescribed

by Congress,” the Court looked to federal common law

to abate the nuisance, and to supply an appropriate

remedy. /d. at 103-04, 92 S.Ct. 1385. The Court wrote:

It may happen that new federal laws and new

federal regulations may in time pre-empt the

field of federal common law of nuisance. But

until that comes to pass, federal courts will be

empowered to appraise the equities of the suits

alleging creation of a public nuisance by water

pollution.

Id. at 107, 92 S.Ct. 1385. Milwaukee I stands for the

proposition that if the extant statutes governing

water pollution do not cover a plaintiffs claims and

provide a remedy, a plaintiff is free to bring its claim

under the federal common law of nuisance; a plaintiff

is not obliged to await the fashioning of a comprehen-

sive approach to domestic water pollution before it

can bring an action to invoke the remedy it seeks. See

38a

id. at 101-02, 92 S.Ct. 1385. Similarly, the fact that

the Clean Air Act (“CAA”) or other air pollution

statutes, as they now exist, do not provide Plaintiffs

with the remedy they seek does not mean that

Plaintiffs cannot bring an action and must wait for

the political branches to craft a “comprehensive”

global solution to global warming. Rather, Plaintiffs

here may seek their remedies under the federal

common law. They need not await an “initial policy

determination” in order to proceed on this federal

common law of nuisance claim, as such claims have

been adjudicated in federal courts for over a century.

It is also fair to say that the Executive branch and

Congress have not indicated they favor increasing

greenhouse gases. On the contrary, the political

branches are at the very least concerned about global

warming, and Congress has passed laws that call for

study of climate change and research into technolo-

gies that will reduce emissions. See, e.g., Global

Climate Protection Act of 1987, Pub.L. No. 100-204,

Title XI, §§ 1103, 101 Stat. 1407, as amended by

Pub.L. No. 103-199, 107 Stat. 2327, reprinted as note

to 15 U.S.C. § 2901 (stating that United States policy

should seek to “(a) increase worldwide understanding

of the greenhouse effect and its environmental and

health consequences; . . . [and] (3) identify technolo-

gies and activities to limit mankind’s adverse effect

on the global climate by—(A) slowing the rate of

increase of concentrations of greenhouse gases in the

near term... .”)

As other courts have found, where a case “appears

to be an ordinary tort suit, there is no ‘impossibility

of deciding without an initial policy determination of

a kind clearly for nonjudicial discretion.” McMahon

v. Presidential Airways, Inc., 502 F.3d 1331, 1365

39a

(11th Cir.2007) (quoting Baker, 369 U.S. at 217, 82

S.Ct. 691). Such is the case here. Accordingly, the

third Baker factor does not apply.

4. The Fourth, Fifth, and Sixth Baker Factors:

Will Adjudication of This Case Demonstrate

“Lack of Respect” for the Political Branches,

Contravene “An Unusual Need for Unques-

tioning Adherence to a Political Decision

Already Made,” or “Embarrass” the Nation as

a Result of “Multifarious Pronouncements by

Various Departments”?

“The fourth through sixth Baker factors appear to

be relevant only if judicial resolution of a question

would contradict prior decisions taken by a political

branch in those limited contexts where such contra-

diction would seriously interfere with important

governmental interests.” Kadic, 70 F.3d at 249.

Defendants lump these final Baker factors together,

arguing only that because “U.S. policy is manifestly

not to engage in unilateral reductions of domestic

emissions,” where Congress opted only to study

the issue, a judicially imposed resolution enjoining

domestic emissions through federal common law

would demonstrate a “lack of respect” for the political

branches, contravene a “political decision already

made,” and create the potential for “embarrassment

from multifarious pronouncements by various depart-

ments on one question.”

Lurking behind Defendants’ arguments is this

salient question: What exactly is U.S. “policy” on

greenhouse gas emissions? At one point in their

briefs, Defendants acknowledge that this country’s

official policy and Congress's strategy is to reduce the

generation of greenhouse gases. Elsewhere, they point

to a policy of research as a prelude to formulating a

40a

coordinated, national policy. They also assert that

US. policy is “not to engage in unilateral reduction of

domestic emissions” (relating, in particular, to the

international arena). These variegated pronounce-

ments underscore the point that there really is no

unified policy on greenhouse gas emissions.” Allowing

this litigation where there is a lack of a unified policy

does not demonstrate any lack of respect for the

political branches, contravene a relevant political

decision already made, or result in multifarious

pronouncements that would embarrass the nation.

See Alperin v. Vatican Bank, 410 F.3d 532, 558 (9th

Cir.2005) (“Because of a lack of a policy decision on

point, we do not reach the question posed by the fifth

Baker test whether there is an ‘unusual need for

unquestioning adherence’ thereto.” (quoting Baker,

369 U.S. at 217, 82 S.Ct. 691)); Klinghoffer, 937 F.2d

at 50 ([N]o prior political decisions are questioned—

or even implicated—by the matter before us.”).

At the same time, to the extent that Defendants

claim U.S. emissions policy does not aim to reduce

emissions, their argument is undermined by the leg-

islation they cite in their brief, which supports a con-

clusion that U.S. emissions polic,; seeks to eventually

achieve the “stabilization and eventual reduction in

the generation of greenhouse gases,” Energy Policy

Act of 1992, 42 U.S.C. § 13382(a\(2), (g), and to “limit

mankind's adverse effect on the global climate... ,”

Global Climate Protection Act of 1987, § 1103(a\(3).

In this respect, adjudication would certainly not con-

travene any political decision already made.

* When Defendants briefed this argument, they were focusing

on the greenhouse gas emissions policy of the former adminis-

tration Now that a new administration is 1n office, the emis-

sions policy is changing. See Section v. on Displacement, infra.

4la

Certainly, the political implications of any decision

involving possible limits on carbon emissions are

important in the context of global warming, but not

every case with political overtones is non-justiciable.

It is error to equate a political question with a

political case. See Baker, 369 U.S. at 217, 82 S.Ct.

691 (“The doctrine . . . is one of ‘political questions,’ not

one of ‘political cases.”). Given the checks and balances

among the three branches of our government, the

judiciary can no more usurp executive and legislative

prerogatives than it can decline to decide matters

within its jurisdiction simply because such matters

may have political ramifications.

Furthermore, given the nature of federal common

law, where Congress may, by legislation, displace

common law standards by its own statutory or reg-

ulatory standards and require courts to follow those

standards, there is no need for the protections of the

political question doctrine. The legislative branch is

free to amend the Clean Air Act to regulate carbon

dioxide emissions, and the executive branch, by way

of the EPA, is free to regulate emissions, assuming

its reasoning is not “divorced from the statutory

text.” Massachusetts v. EPA, 549 U.S. 497, 532, 127

S.Ct. 1438, 167 L.Ed.2d 248 (2007). Either of these

actions would override any decision made by the dis-

trict court under the federal common law.

In sum, we hold that the district court erred when

it dismissed the complaints on the ground that they

presented non-justiciable political questions.

Ill. Standing

The district court explicitly declined to address De-

fendants’ standing arguments, reasoning in a foot-

note that “because the issue of Plaintiffs’ standing is

42a

so intertwined with the merits and because the fed-

eral courts lack jurisdiction over this patently politi-

cal question, I do not address the question of Plain-

tiffs’ standing.” Connecticut v. Am. Elec. Power Co.,

406 F.Supp.2d 265, 271 n. 6 (S.D.N.Y.2005). In

Friends of the Earth, Inc. v. Laidlaw Environmental

Services, Inc., 528 U.S. 167, 120 S.Ct. 693, 145

L.Ed.2d 610 (2000), the Supreme Court held that

when a lower court dismisses a case without deciding

whether standing exists and the basis for the dismis-

sal was found to be error, the Court has an obligation

sua sponte to assure itself that the plaintiffs have

Article II] standing before delving into the merits.

See id. at 180, 120 S.Ct. 693; see also Ross ex rel.

Dunham v. Lantz, 408 F.3d 121 (2d Cir.2005)

(standing must be established to invoke jurisdiction

before a federal court can consider the merits of a

case). Because we hold that the complaints should

not have been dismissed on the ground that they pre-

sented non-justiciable political questions, we must

explore whether Plaintiffs have standing. The parties

in this appeal have fully briefed the issue of standing.

The procedural posture of a case is important when

assessing standing. The standard against which a

court measures allegations of standing on the plead-

ings is well known:

[Wle presume the general factual allegations

embrace those facts necessary to support the

claim, see Lujan v. Defenders of Wildlife, 504

U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351

(1992), and are constrained not only to accept the

truth of the plaintiffs’ jurisdictional allegations,

but also to construe all reasonable inferences to

be drawn from those allegations in plaintiffs’

favor. See Warth [v. Seldin], 422 U.S. |490,] 501-

43a

02, 95 S.Ct. 2197, 45 L.Ed.2d 343 [(1975)];

Robinson v. Gov't of Malaysia, 269 F.3d 133, 140

(2d Cir.2001).

Brooklyn Legal Servs. Corp. v. Legal Servs. Corp., 462

F.3d 219, 226 (2d Cir.2006). The Supreme Court has

commented on the lowered bar for standing at the

pleading stage, stating that “general factual alle-

gations of injury resulting from the defendant’s con-

duct may suffice, for on a motion to dismiss we

‘presumle] that general allegations embrace those

specific facts that are necessary to support the

claim.” Lujan v. Defenders of Wildlife, 504 U.S. 555,

561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (quoting

Lujan v. Natl Wildlife Fed’n, 497 U.S. 871, 889, 110

S.Ct. 3177, 111 L.Ed.2d 695 (1990)). This Court echoed

that point in Baur v. Veneman, 352 F.3d 625, 631 (2d

Cir.2003), stating that “at the pieading stage, standing

allegations need not be craftea with precise detail,

nor must the plaintiff prove his allegations of injury.”

See also Bldg. & Constr. Trades Council of Buffalo v.

Downtown Dev., Inc., 448 F.3d 138, 145 (2d Cir.2006)

(holding that federal pleading rules do not require

heightened pleading standards to allege standing).

At this point in the litigation, Plaintiffs need not

present scientific evidence to prove that they face

future injury or increased risk of injury, that Defen-

dants’ emissions cause their injuries, or that the

remedy they seek will redress those injuries. As the

Baur Court wrote:

[Tlo the degree that defendants challenge the

factual underpinnings of [plaintiffs’] standing the

argument is premature. Defendants may certainly

test |plaintiffs’] standing as the litigation pro-

gresses by requesting an evidentiary hearing or

by challenging [plaintiffs’] standing on summary

44a

judgment or even at trial. However, allegation of

a credible risk may be sufficient at the pleading

stage without further factual confirmation or

quantification of the precise risk at issue. Adopt-

ing a more stringent view of the injury-in-fact

requirement in environmental cases . . . would

essentially collapse the standing inquiry into the

merits.

Baur, 352 F.3d at 642 (alteration, internal quotation

marks, and citations omitted). Although we are not

reviewing the district court’s ruling om a motion to

dismiss for lack of standing, as the district court did

not address that issue, we nevertheless are assessing

two cases at the pleading stage and thus the Lujan-

Baur reasoning applies.

In Connecticut v. Cahill, 217 F.3d 93 (2d Cir.2000),

this Court enumerated three capacities in which States

may bring suit in federal court: “(1) proprietary suits

in which the State sues much like a private party

suffering a direct, tangible injury; (2) sovereignty

suits requesting adjudication of boundary disputes or

water rights; or (3) parens patriae suits in which

States litigate to protect ‘quasi-sovereign’ interests.”

Id. at 97 (citations omitted). Here, the States are

suing in both their proprietary and parens patriae

capacities, and New York City and the Trusts are

Suing in their proprietary capacities. We analyze the

States’ parens patriae standing first, followed by an

analysis of New York City’s, the States’, and the

Trusts’ proprietary standing.

A. The States’ Parens Patriae Standing

1. Background

Parens patriae is an ancient common law preroga-

tive which “is inherent in the supreme power of every

45a

state .. . [and is] often necessary to be exercised in

the interests of humanity, and for the prevention of

injury to those who cannot protect themselves.” Late

Corp. of the Church of Jesus Christ of Latter-Day

Saints v. United States, 136 U.S. 1, 57, i0 S.Ct. 792,

34 L.Ed. 478 (1890). The Supreme Court, in Missouri J,

articulated the rationale behind parens patriae stand-

ing in common law nuisance cases when it allowed

Missouri to sue Illinois to enjoin it from dumping

sewage that poisoned Missouri’s water supply. The

Court stated that:

[A]n adequate remedy can only be found in this

court at the suit of the state of Missouri. It is

true that no question of boundary is involved, nor

of direct property rights belonging to the com-

plainant state. But it must surely be conceded

that, if the health and comfort of the inhabitants

of a state are threatened, the state is the proper

party to represent and defend them. If Missouri

were an independent and sovereign State all

must admit that she could seek a remedy by

negotiation, and, that failing, by force. Diplo-

matic powers and the right to make war having

been surrendered to the general government, it

was to be expected that upon the latter would be

devolved the duty of providing a remedy, and

that remedy, we think, is found in the constitu-

tional provisions we are considering.

Missouri I, 180 U.S. at 241, 21 S.Ct. 331. A few years

later, the Court drew upon Missouri I’s principles and

extended this approach to a state’s suit against a

private party—once again in a common law nuisance

suit. In Georgia v. Tennessee Copper Co., 206 U.S.

230, 27 S.Ct. 618, 51 L.Ed. 1038 (1907), the Supreme

Court’s first major air pollution case, Georgia sought

46a

to enjoin Tennessee Copper from discharging noxious

gases that, it claimed, injured its citizens and its

land. Although the Court referred to Georgia’s pro-

prietary claims as a “makeweight,” it allowed the

state to sue “for an injury to it in its capacity of

quasi-sovereign. In that capacity the state has an

interest independent of and behind the titles of its

citizens, in all the earth and air within its domain. It

has the last word as to whether .. . its inhabitants

shall breathe pure air.” Id. at 237, 27 S.Ct. 618. The

Tennessee Copper Court, citang Missouri II, explained

that when the states joined the umeon, “they did not

thereby agree to submit to whatever might be done.

They did not renounce the possibility of making rea-

sonable demands on the ground of their still remain-

ing quasi-sovereign interests; and the alternative to

force is a suit in this court.” Jd. These cases demon-

strate that a state’s interests in prot@ing both its

natural resources and the health of it» citizens have

been recognized as legitimate quasi-sovereign inter-

ests since the turn of the last century. See id.; Snapp

v. Puerto Rico ex rel. Barez, 458 U.S. 592, 603, 102

S.Ct. 3260, 73 L.Ed.2d 995 (1982) (noting “a line of

cases . . . in which States successfully sought to

represent the interests of their citizens in enjoining

public nuisance”);"° Pennsylvania ex rel. Shapp v.

Kleppe, 533 F.2d 668, 673-74 (D.C.Cir.1976) (“The

earliest cases allowing a state to sue as representa-

Minnesota, 263 U.S. 365, 44 S.Ct 138, 68 L.Ed. 342 (1923),

Wyoming v. Colorado, 259 U.S. 419, 42 S.Ct. 552, 66 L.Ed. 999

(1922); New York v. New Jersey, 256 US. 296, 41 S.Ct. 492, 65

L.Ed. 937 (1921); Kansas v Colorado, 206 U.S. 46, 27 S.Ct. 655,

51 L Ed. 956 (1907); Tenn. Copper Co., 206 U.S at 230, 27 S.Ct.

618, Kansas v Colorado, 185 U.S. 125, 22 S.Ct. 552, 46 L.Ed.

838 (1902); and Missouri J, 180 U.S. at 208, 21 S.Ct. 331.

47a

tive of its citizenry involved the protection or pre-

servation of land or other natural resources. .. Whole

the state thus lacked standing to sue in its own right,

it was found to be a proper party to bring suvt

because of its residual interest independent of and

behind the titles of its citizens, in all the earth and

air within its domain.” (citation and internal quotation

marks omitted)).

2. Parens Patriae as a Species of Article III

Standing

State standing is not monolithic and depends on

the role a state takes when it litigates in a particular

case. See Cahill, 217 F.3d at 97. In Snapp, the seminal

modern-day parens patriae standing case, the Supreme

Court explained how the capacity in which a state

sues has an impact on the standing analysis. After

discussing a state’s severeign interests, the Court

drew a distinction between a state’s proprietary and

quasi-sovereign interests:

Not all that a State does, however, is based on its

sovereign character. Two kinds of nomsovereign

interests are to be distinguished. First, like other

asseciations and private parties, a State is bound

to have a variety of proprietary interests. A State

may, for example, own land or participate in a

business venture. As a proprietor, it is likely to

have the same interests as other similarly

situated proprietors. And like other such proprie-

tors it may at times need to pursue those inter-

ests in court. Second, a State may, for a variety

of reasons, attempt to pursue the interests of a

private party, and pursue those interests only for

the sake of the real party in interest... .

48a

Quasi-sovereign interests stand apart from .. .

the above: They are not sovereign interests, pro-

prietary interests, or private interests pursued

by the State as a nominal party. They consist of a

set of interests that the State has in the well-

being of its populace. Formulated so broadly,

the concept risks being too vague to survive

the standing requirements of Art. Ill: A quasi-

sovereign interest must be sufficiently concrete

to create an actual controversy between the State

and the defendant. The vagueness of this concept

can only be filled in by turning to individual cases.

Snapp, 458 U.S. at 601-02, 102 S.Ct. 3260 (emphases

added).

In order to ensure that a state suing on behalf of its

injured citizens properly asserts a case or controversy

sufficient for Article Ill standing purposes, Snapp

formulated a test for parens patriae standing. A state:

(1) “must articulate an interest apart from the interests

of particular private parties, i.e., the State must be

more than a nominal party”; (2) “must express a

quasi-sovereign interest”’'; and (3) must have “alleged

injury to a sufficiently substantial segment of its

population.”’* Id. at 607, 102 S.Ct. 3260; see also

'' The Court identified two types of quasi-sovereign interests:

(1) protecting “the health and well-being . . . of its residents,”

and (2) “securing observance of the terms under which [the

state] participates in the federal system.” Snapp, 458 U.S. at

607-08, 102 S.Ct 3260. Only the “health and well-being” quasi-

sovereign interest is at issue here, and our analysis is thus

limited to this interest

2 Justice Brennan, in a four-Justice concurrence in Snapp,

suggested that the state, as “no ordinary litigant,” was “entitled

to assess its needs, and decide which concerns of its citizens

warrant its protection and intervention.” Snapp, 458 U.S at

612, 102 S.Ct. 3260 (Brennan, J., concurring).

49a

People of N.Y. by Abrams v. Seneci, 817 F.2d 1015,

1017 (2d Cir.1987) (analyzing state parens patriae

standing according to Snapp criteria). This Court, in

People of New York by Abrams v. 11 Cornwell Co.,

695 F.2d 34 (2d Cir.1982), vacated in part on other

grounds, 718 F.2d 22 (2d Cir.1983) (en banc), added

another requirement for states te sue as parens petriae

the Court must also make “a finding that individuals

lupon whose behalf the state is suimg] could not

obtain complete relief through a private suit.” /d. at

40; see also, e.g., Connecticut v. Physicians HMealth

Servs. of Conn., Inc., 287 F.3d 110, 119-20 (2d Cir

2002) (reviewing factors that the Supreme Court,

Second Circuit, and other courts have viewed as

prerequisites for parens patriae standing, welwlmny

whether there were “adequate alternative means

of cwil enforcement by which individual plaintffs

may obtain eomplete relief” (quoting Comnectiow! v.

Physicians Health Servs. of Conn., Ine., 108 F.Supp.

2d 495, 509 (D.Conn.2000))).

The Snapp Court applied its test, post-hoc, to the

public muisance cases of Missours and Tennessee

Copper, finding that “the injury to the public health

and comfort was graphic and direct,” thereby giving

an after-the-fact imprimatur to parens patriae standing

in these public nuisance cases that satisfied Article

III's “Case” or “Contreversy” requirement. 458 U.S. at

604, 102 S.Ct. 3260.

In the decades followmg Snapp, federal courts have

applied its test to determine whether a state had

standing as parens patriae. For the most part, in our

increasingly statutory and regulatory system, courts

have explored whether states have parems patriac

standing under a statute, see, e.g., Senecr, 817 F.2d

at 1017 (standing under RICO), rather than under

50a

federal common law.'* The view that states’ parens

patriae standing sufficed for Article LI] standing was

not called into question until the recent Supreme

Court opinion in Massachusetts v. EPA, 549 U.S. 497,

127 S.Ct. 1438, 167 L..Fd.2d 248 (2007).

3. Effect of Massachusetts v. EPA

In April 2007, the Supreme Court decided Massa

chusetts, ruling that the plaintiffs (ten states and six

trade associations) could challenge: (1) a decision by

the Environmental Protection Agency (“EPA”) not to

regulate greenhouse gas emissions from new motor

vehicles under the CAA; and (2) EPA’s stated reasons

for refusing to regulate those emissions. See id. Prior

to its merits assessment, the Supreme Court focused

on the contentious issue of standing, given that each

member of the D.C. Circuit panel had written a sepa-

rate opinion and had come to a different conclusion

about whether the States had standing to bring the

action. The Court summarized the circuit court opi-

nions as follows: “Judge Randolph avoided a defini-

tive ruling as to petitioners’ standing, reasoning that

it was permissible to proceed to the merits because

the standing and the merits inquiries overlapped”;

“Judge Sentelle wrote separately because he believed

petitioners failed to demonstrate the elements of

injury necessary to establish standing under Article

III”; and Judge Tatel dissented, concluding “that at

least Massachusetts had satisfied each element of

Article III standing—injury, causation, and redressa-

"In Texas v. American Tobacco Co., 14 F Supp.2d 956, 962

(.D.Tex.1997), the district court held that Texas had parens

patriae standing to bring its claim under common law.

Hla

bility.” Id. at 514-16, 127 S.Ct. 1438 (internal quota-

tion marks and citations omitted)."

The Supreme Court ruled that Massachusetts had

Article III standing. The Court introduced the stand-

ing section by citing the three-part Lujan test, focus-

ing in its initial analysis on the States’ proprietary

interests as property owners. This approach is consis-

tent with Snapp’s distinction between a state suing

as parens patriae and a state suing in a capacity

similar to that of an individual landowner. The Court

observed that Congress had explicitly authorized a

procedural right to challenge EPA actions under the

CAA, see 42 U.S.C. § 7607(b)(1) (pertaining to judicial

review), reaffirming Congress’s power to “define

injuries and articulate chains of causation that will

give rise to a case or controversy where none existed

before.” Id. at 516, 127 S.Ct. 1438 (quoting Lujan,

504 U.S. at 580, 112 S.Ct. 2130). This procedural

right was “of critical importance to the standing

inquiry” and permitted the States a short cut in the

Lujan standing analysis, as they were not obliged to

“meet| | all the normal standards for redressability

'™ Judges Randolph and Sentelle did not focus on the State's

quasi-sovereign role when analyzing standing. In fact, Judge

Sentelle introduced his injury analysis with a quote from Ex

Parte Leviti, 302 US. 633, 58 S.Ct. 1, 82 L.Ed. 493 (1937), which

discussed injury in the context of a private individual. Massa

chusetts v. EPA, 415 F.3d 50, 59 (D.C.Cir.2005). Judge Tatel

made only a glancing reference to Massachusetts’ claim of

injury, which seemed to refer to the State’s proprietary interests

as landowner. He cited Massachusetts’ “loss of land within its

sovereign boundanes—that ‘affects lit] in a personal and

individual way.” Id. at 65 (quoting Lujyan, 504 U.S at 560 n. 1,

112S Ct. 2130).

b2a

and immediacy.” /d. at 516-17, 127 5.Ct. 1438 (quoting

Lujan, 504 U.S. at 572 n. 7, 1

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