In the 2011 term, the Supreme Court will consider closing all federal courthouse doors to those harmed by climate change.
Greenhouse gas emissions – especially emissions of carbon dioxide - are a danger to the environment because they lead to temperature changes in the atmosphere. Temperature changes in the atmosphere lead to warmer seas, melting glaciers, rising sea levels and eroding coastlines. Coal-burning power plants emit carbon dioxide in huge quantities.
Although it is the job of the Environmental Protection Agency (EPA) to regulate all emissions that threaten air quality, the EPA has not yet come up with regulations that actually require coal burning power plants to control how much greenhouse gas they release into the air.
Eight states, New York City and three land trusts sued the biggest coal companies in federal court in New York, asking the court to order the companies to limit how much carbon dioxide they release into the atmosphere. The coal companies they sued contribute 10% of all carbon dioxide emissions worldwide from human activity.
Each plaintiff argues that it has already experienced harm from temperature changes in the atmosphere. For example, California has lost a large portion of its mountain snowpack, a crucial water source for 34 million people. If temperature changes in the atmosphere continue on their current trajectory unabated, the next 100 years will bring an increase in heat-wave related illness and death, increased smog and its accompanying respiratory problems, damage to coastal homes and infrastructure, salt water in fresh water supplies, and more extreme weather, which is likely to result in property damage and erosion of irreplaceable ecosystems. The first people to be affected by these “natural” disasters are the least well protected – the poor, elderly, the people who live in communities with aging infrastructure and who lack the resources to provide for themselves when that infrastructure fails.
California and its partners in the case won: A federal appeals court in New York was convinced that emissions of carbon dioxide contribute to global warming and are already having an impact on sea levels enough to be considered a public nuisance – that is, interfering with public health in violation of federal law. The appeals court sent the case back to the trial court for an order limiting emissions.
But the coal companies were not pleased with the result and appealed the decision to the Supreme Court. The Supreme Court only hears a small number of cases every year, but decided to take the case, called Connecticut v. AEP. (The Supreme Court doesn’t have to take every case that is appealed; it gets to pick and choose.) The fact that the Supreme Court decided to hear this case in 2011 is a signal that the court wants to weigh in on whether people, cities, states and other entities harmed by pollution have a right to be heard by courts in the future. The Supreme Court may agree with the appeals court that decided the case for the injured states, New York City and the land trusts. But it may also overturn that decision, potentially slamming the door in the faces of others harmed by pollution and climate change who hope to have their day in court when injured by a public nuisance.
Paula Z. Segal is a third year law student at City University of New York Law School at Queens College. She is the Events Editor of the New York City Law Review and an active member of the NYC National Lawyers Guild Street Law Team. In the Fall of 2010, she interned with the Environmental Justice Unit at New York Lawyers for the Public Interest.
(Photo by davipt.)