Greenhouse gasses: Political question or public nuisance?

Following closely on the heels of two high-profile reversals from the 2nd and 5th Circuits finding subject matter jurisdiction over public nuisance actions for damage allegedly caused by greenhouse gas emissions, U.S. District Judge Saundra Armstrong did what the district courts in those two prior actions did by dismissing the Village of Kivalina’s federal common law claim for nuisance, holding that her court lacked jurisdiction on the basis of political question and lack of standing.  In doing so, Judge Armstrong set the case up for a 9th Circuit appeal and further percolation among the circuits as to the question of whether climate change caused by greenhouse gasses is a justiciable public nuisance, or a non-justiciable political question.  The 2nd and 5th Circuits have now found justiciable public nuisances.

Proponents of GHG litigation argue that a similar outcome at the 9th Circuit would accelerate adoption of GHG-reducing technologies in electricity generation and transmission.

Here’s the current round up:

Second Circuit:    Connecticut v. American Electric Power Co. — View the Complaint, the S.D.N.Y. Order granting defendants’ motion to dismiss, and the 2nd Circuit’s Sept. 21, 2009 opinion reversing the district court.

Fifth Circuit:   Comer v. Murphy Oil USA, Inc. —  View the Third Amended Class Action Complaint filed in the Southern District of Mississipi, the district court’s order granting defendants’ motion to dismiss, and the 5th Circuit’s Oct. 16, 2009 opinion reversing the district court.

Ninth Circuit:  Village of Kivalina v. ExxonMobil — View the Complaint and Judge Armstrong’s Order dismissing the action.

Ninth Circuit:  California v. General Motors — View the Complaint and Judge Martin Jenkins’ Order granting defendants’ motion to dismiss.  The case was originally appealed to the 9th Circuit but the appeal was withdrawn .

18 states intervene to support EPA waiver letting California set new vehicle emissions standards

Back in July, EPA reversed its prior decision and granted California’s request for waiver of federal preemeption, allowing California to regulate greenhouse gas emissions from new motor vehicles.  The U.S. Chamber of Commerce (USCC) and National Automobile Dealers Association (NADA) filed a petition for review and statement of issues with the Court of Appeals for the D.C. Circuit, asking the appellate court to reverse the waiver.

Today, a coalition of 18 states moved filed a motion to intervene on California’s behalf.  The coalition states are Arizona, Connecticut, Delaware, Florida, Illinois, Iowa, Maine, Maryland, Minnesota, Massachusetts, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont and Washington.

Commentators argue California’s authority to set its own emissions is an effective means encourage automakers to make cleaner and more efficient vehicles.  Others advocate a standardized national auto market to achieve the same goals.

California’s standards will apply from model years 2009 to 2011.  According to EPA, national compliance will then count for state compliance for from 2012 to 2016.

EPA provides a description of the California waiver and waiver-determination process here.

Obama’s Presidential Memorandum ordering EPA to review it’s initial decision: here.