Second Circuit Rules Warming Suits May Proceed Against Power Companies

By Ross Todd

September 22, 2009

Back in June, we were nearly ready to write off efforts to hold polluters liable for climate change via litigation. That's when California dropped its claims against six car companies, ending the state's three-year fight to extract hundreds of millions of dollars from the auto industry for allegedly contributing to global warming.

So it came as somewhat of a surprise Monday when the U.S. Court of Appeals for the Second Circuit reinstated two lawsuits brought by New York City and a group of states and land trusts that challenged major utilities on their carbon dioxide emissions from coal-burning power plants. Here's the story from our colleagues at the New York Law Journal. And here's a copy of the court's 139-page opinion.

Writing for the two-judge panel (the third judge who heard the case being none other than newly appointed U.S. Supreme Court justice Sonia Sotomayor), Judge Peter Hall disagreed with a lower court ruling that the courts needed an "initial policy determination" from the elected branches of government before taking on global warming nuisance claims. "A decision by a single federal court concerning a common law of nuisance cause of action, brought by domestic plaintiffs against domestic companies for domestic conduct, does not establish a national or international emissions policy (assuming that emissions caps are even put into place)," Hall wrote.

Lawyers from Sidley Austin, Jones Day, and Hunton & Williams represented the utilities except for The Tennessee Valley Authority, which was represented by a team of in-house lawyers. Former Sidley partner Joseph Guerra handled oral arguments for the utilities at the Second Circuit. He has taken a position in the Department of Justice since the case was argued in June 2006.

The Litigation Daily took the decision as an opportunity to catch up with Matthew Pawa, a lawyer in private practice in Newton Centre, Mass., who has worked on the case alongside multiple states' attorneys general. (The Lit Daily first encountered Pawa back in 2007, when we wrote a profile of him in the November 2007 print edition of The American Lawyer after taking a ride to Cape Cod in his grease-powered Mercedes.)

Needless to say, Pawa was very excited about the Second Circuit reinstating the cases. "In light of this decision, there's no way [for the defendants] to get out of these cases." Pawa said in a phone interview Tuesday. "These cases are going to be heard on the facts, and the facts and the science on global warming are clear and they are strong. The fact that global warming is susceptible to a tort now is an important question that's been resolved in our favor." At least for now.

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