U.S. Supreme Court

Case Status


Docket Number


2010 Term

Oral Argument Date

April 19, 2011


Questions Presented

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 billions 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).

Case Updates

Supreme Court affirms Second Circuit’s exercise of jurisdiction

June 20, 2011

In so holding, the Court expressly rejected the plaintiffs’ argument that the Clean Air Act does not displace federal common law public nuisance actions until after EPA has set emissions standards for greenhouse gases. To the contrary, the Court made abundantly clear that the relevant inquiry is whether “whether the field has been occupied, not whether it has been occupied in a particular manner.” The “critical point,” the Court explained, “is that Congress delegated to EPA the decision whether and how to regulate carbon-dioxide emissions from power plants; the delegation is what displaces federal common law” (emphasis added). Should the EPA ultimately decline to regulate greenhouse gas emissions, the Court said, federal courts would still be closed to the plaintiffs “to employ the federal common law of nuisance to upset the agency’s expert determination.”

As to the state public nuisance claims, the Court remanded those claims to the lower court to determine whether the Clean Air Act preempts state nuisance actions.

U.S. Chamber files amicus brief

February 07, 2011

NCLC urged the U.S. Supreme Court to reverse a Second Circuit ruling that allowed a group of states to bring a federal common law public nuisance action against several utility companies for allegedly contributing to global warming through greenhouse gas emissions.

Plaintiffs in this action, a consortium of states and private interests, filed a lawsuit to hold five American utilities jointly and severally liable for “contributing” to global climate change caused by billions of sources around the world over the course of centuries under a vague and far-reaching federal common law theory of “public nuisance.” This unprecedented lawsuit asks the federal courts to “cap” the companies’ carbon dioxide emissions and then reduce them by an unspecified percentage “each year for at least a decade.”

NCLC's amicus brief on the merits argued three independent legal grounds for dismissing the public nuisance suit:

First, the Supreme Court should reject the plaintiffs’ request for the Justices to legislate from the bench by creating new federal common law. Plaintiffs brought their case not under any federal right established by Congress, but rather, have asked the federal courts to create a new federal common law “climate change public nuisance” cause of action. In the modern era, the Supreme Court has largely gotten out of the business of inventing new federal common law, and this case should not provide the exception to that rule.

Second, NCLC argued that the case is not justiciable because the complex policy issues raised by climate change should be addressed by the political branches, not the judicial system. Over two centuries ago, the Supreme Court wisely said that courts have no authority to decide questions that are “in their nature political.” In this case, the plaintiffs can point to no rule of law that could guide the Court in answering the difficult policy questions raised by climate change. How best to address the complex issues implicated by global climate change is a question that can only be resolved by the political branches, not the courts.

Third, NCLC argued that the plaintiffs lack standing to bring the lawsuit. The Constitution established “limitations on the ability to bring lawsuits in federal courts (“standing”), in order to respect what the Supreme Court has called “the proper—and properly limited—role of the courts in [our] democratic society.” The courts have long rejected lawsuits brought by those who cannot trace the alleged injuries back to the defendants, or who ask the courts for remedies that cannot realistically provide redress to the plaintiffs. In this case, the nature of greenhouse gas distribution and its relation to climate change cannot be fairly traced to the defendants in this case; and the plaintiffs conceded that this lawsuit, brought against a finite and arbitrary set of carbon-emitting entities, cannot realistically redress the climate change harms that they allege.

In addition to NCLC's legal arguments for rejecting the lawsuit, NCLC offered several policy reasons for dismissing the plaintiffs’ lawsuit. NCLC warned that the potential economic implications of allowing the suit to proceed are staggering. If the lower court’s decision is upheld, energy prices will rise, and the economy could suffer dramatically. NCLC’s brief also argued that the Second Circuit’s decision opens the door to more abuse of the public nuisance doctrine, potentially subjecting industries engaged in otherwise lawful activities to frivolous litigation simply because someone found their activities offensive or inconvenient.

Cert. petition granted

December 06, 2010

U.S. Chamber supports cert. petition

September 03, 2010

Click here to view the amicus brief.

Case Documents