Where Congress and the executive fail to act, courts are being looked to by opponents of climate change. In Connecticut v. American Electric Power, for instance, the state of Connecticut is leading a coalition of plaintiffs suing some of the country's largest electric utilities. The plaintiffs are asking a federal court to order reductions of the utilities' greenhouse gas emissions, which, at their present levels, allegedly present a public nuisance in the form of climate change.
Doug Kendall and Hannah McCrea of the Constitutional Accountability Center and Warming Law, a blog that tracks climate-change litigation, detail the set-backs and progress plaintiffs are making in American Electric Power and related cases:
Though the cause-and-effect aspect of this argument might seem hard to prove in court, global-warming victims in other corners of the country started filing similar lawsuits. In Comer v. Murphy Oil, residents of Mississippi's Gulf Coast sued nearby oil refineries for damages they suffered during Hurricane Katrina, alleging that the refineries' greenhouse-gas emissions contributed to the force of the storm. In 2008, in Native Village of Kivalina v. Exxon, residents of a small village on a barrier island off the Alaskan coast, whose homes are being steadily submerged by rising sea levels, filed suit against two dozen energy companies for their contribution to climate change. The villagers, who are native Inupiat, seek more than $400 million in damages to cover the cost of relocating their homes, again using the doctrine of nuisance law.
Each of these cases was dismissed at the trial court level. The judges said that the suits raised a "political question" not fit for the judicial branch to rule on-a tool that allows judges to punt tricky cases they don't want to decide. Two of the lower courts also said that the parties lacked legal standing to bring the lawsuits, because they could not show their injuries were sufficiently traceable to the defendants' conduct. However, the plaintiffs appealed these dismissals to federal courts of appeals, arguing that they do have standing and that the "political question" doctrine does not apply.
Then, to the shock of the legal community and even some environmentalists, two federal appeals courts reversed these rulings. Last September, after more than three years of deliberating, a two-judge panel on the U.S. Court of Appeals for the 2nd Circuit overturned the dismissal of Connecticut v. AEP in a sweeping 139-page opinion. A few days later, a three-judge panel of the U.S. Court of Appeals for the 5th Circuit released a similar opinion reinstating the Katrina victims' lawsuit. The five judges responsible for these rulings --three of whom were appointed by Republican presidents --found that the plaintiffs had standing and that the evidence of the relationship between greenhouse gases and climate change was sufficient for the cases to go forward. The courts did not punt because of the "political question" doctrine, pointing out that federal courts have successfully handled public nuisance claims involving environmental damage for more than a century.