Federal Judge Rejects Global Warming Suit against Utilities

Published November 1, 2005

A federal judge on September 15 dismissed a lawsuit designed to force several major utility companies to reduce their greenhouse gas emissions. The suit was brought by environmental activist groups and eight states.

Having failed to convince Congress to pass legislation to cap and reduce greenhouse gas emissions; having failed to convince the Environmental Protection Agency (EPA) to regulate greenhouse gas emissions; and having failed to convince the U.S. Court of Appeals for the District of Columbia to force EPA to regulate greenhouse gas emissions, plaintiffs in the case argued they had a common-law nuisance complaint against the utility companies.

Specifically, the plaintiffs alleged the defendant utility companies released greenhouse gases that contributed to “the public nuisance” of global warming and that the plaintiffs were entitled to an injunction ordering the defendants to minimize harm to the plaintiffs by reducing their greenhouse gas emissions.

Judge: Lawmakers Should Decide

Judge Loretta Preska rebuffed the plaintiffs’ arguments, noting global warming is a high-profile, scientifically and politically charged issue. Congress and EPA, Preska further observed, have both specifically addressed the issue.

“A non-justiciable political question exists when a court confronts the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion,” observed Preska. “In this case, balancing those interests, together with the other interests involved, is impossible without 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.”

Continued Preska, “Plaintiffs advance a number of arguments why theirs is a simple nuisance claim of the kind courts have adjudicated in the past, but none of the pollution-as-public-nuisance cases cited by Plaintiffs has touched on so many areas of national and international policy. The scope and magnitude of the relief Plaintiffs seek reveals the transcendently legislative nature of this litigation. Plaintiffs ask this Court to cap carbon dioxide emissions and mandate annual reductions of an as-yet-unspecified percentage.”

Congress, EPA Acted Deliberately

“Looking at the past and current actions (and deliberate inactions) of Congress and the Executive within the United States and globally in response to the issue of climate change merely reinforces my opinion that the questions raised by Plaintiffs’ complaints are non-judiciable political questions,” Preska wrote.

“The explicit statements of Congress and the Executive on the issue of global climate change in general and their specific refusal to impose the limits on carbon dioxide emissions Plaintiffs now seek to impose by judicial fiat confirm that making the initial policy determinations addressing global climate change is an undertaking for the political branches,” Preska concluded.

“This is a valuable reiteration of the idea of separation of powers by Judge Preska,” said Competitive Enterprise Institute Senior Fellow Iain Murray. “Politicians are [mindful] of the economic consequences of measures proposed to reduce greenhouse gas emissions.”

By standing up to global warming alarmists, the federal and legislative branches have demonstrated “that political leadership requires courage,” Murray added. “Judge Preska recognized this in her wise opinion.”

James Hoare ([email protected]) is managing attorney at the Syracuse, New York office of McGivney, Kluger & Gannon.