New Pressure to Pass Climate Change Legislation

That tremble you felt yesterday was the world digesting the 2nd Circuit’s decision in Connecticut et al. v. American Electric Power Council.  After sitting on the case for 4 years, the court finally held that Connecticut and 8 other states could proceed to sue the 25 largest coal fired power generators in the country for damages resulting from their contribution to global warming/climate change.  The lower court had basically withdrawn itself from deciding the case, using a judge made doctrine that excuses the judicial branch from deciding a political question.  In its 137 page opinion, the Second Circuit tore apart the District Court’s reasoning going through the step by step analysis required to find that the court did have jurisdiction.

I must admit I wasn’t expecting this result.  Not because the Court isn’t correct (I think its reasoning is absolutely correct), but because it had waited so long.  I suppose like everyone else it was going to see if Congress passed a bill that would render the case moot.  But Congress hasn’t yet, and here we are.  The crux of the case is simple, namely that suing someone for nuisance is exactly the kind of cases courts are used to handling and so should be handled by the courts, even if it is related to ongoing policy.  The lawsuit did not try to force a change in federal policy; it simply sought to hold these actors liable for their actions.  Given the Supreme Court’s decision in Massachusetts v. EPA in 2007, it looks like an easy win for the states when the district court goes ahead and hears the complaint.

And that is what is going to change the world.  The very threat of lawsuits is what initially brought businesses to the table to try and get Congress to come up with a comprehensive plan and end piecemeal regulation and litigation.  This case, which could open the door to billions of dollars in liability, will push most businesses forward to get some legislation out of Congress.

Already today, Pacific Gas & Electric resigned from the U.S. Chamber of Commerce, complaining that its position on global warming (it isn’t happening, shouldn’t be addressed) were so outside the mainstream, that it was holding up progress on the issue.  Look for all big businesses that could face lawsuits to continue to peel off from the CoC coalition and raise the business stakes on climate change legislation.

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