We’ve posted about one of the big certiorari grants from yesterday – Wal-Mart Stores v. Dukes – so today, we’re taking a look at the other one – American Elec. Power Co. v. Connecticut, aka the “global warming” case. Here’s the link to the SCOTUSblog collection of case resources. Just as with Dukes, lots of people have weighed in already, and we’re not here to talk about the issue of global warming per se – which is obviously a hotly contested thicket.
Instead, we took a look at this case through the prism of drug and device law, to see if this is one of those cases we need to follow because of what it may tell us about our practice area. Short answer: yes.
By way of background, American Electric is a case brought by states and private plaintiffs against a number of energy companies. You can read the rampant press/blog coverage for the gory details, but the basic theory of the case is that the energy companies “contribute” to global warming by failing to sufficiently curb harmful emissions. There have been similar “global warming” cases filed in other jurisdictions, but nobody’s gotten very far. In American Electric, the district court dismissed the case, finding the claims were non-justiciable political questions. In essence, the court found that the judiciary should not be in the business of setting emissions standards, and then apportioning responsibility to different industry sectors to reduce those emissions. On this blog, we’ve referred to that sort of business – and the mindset that accompanies it – as “judicial triumphalism.” The Second Circuit, exhibiting severe symptoms of judicial triumphalism, reversed, finding the claims did not present non-justiciable “political questions.” Connecticut v. American Elec. Power Co., 582 F.3d 309, 329-31 (2d Cir. 2009).
The Second Circuit also found that the plaintiffs had standing, even though the injuries alleged were mostly “future” environmental harms; the plaintiffs were not required to “pinpoint the specific harms” of their injuries, or “show that Defendants’ emissions alone cause their injuries. It is sufficient that they allege that Defendants’ emissions contribute to their injuries.” Id. at 347. On the merits, the court found that the “federal common law” supplied the rule of decision, and adopted a “reasonableness” standard from the “public nuisance” section of the Restatement (Second) of Torts. Id. at 324-32. The Court found that federal legislation and regulation in the area of global warming and emissions standards did not displace this federal common law of nuisance. Id. at 381.
So what are the potential ramifications of this case?
First, of course, should the Court affirm the Second Circuit, it’s possible that plaintiffs in the future could go after drug and device companies as emitters, not sellers of drugs and devices. Do we think that’s very likely? Probably not – there’s surely a roster of other targets the plaintiffs’ bar would focus on first. But what would happen if the Court were to recognize the plaintiffs’ novel “federal common law of public nuisance” theory? Well, we could see creative and industrious (that’s being charitable) plaintiffs’ lawyers resurrecting public nuisance claims in other contexts…like drug and device. We’ve occasionally written on nuisance claims in the past; they are exceedingly goofy in the drug and device context, and a little over a year ago we called drug and device public nuisance claims “a bad idea whose time has passed.” We’re sticking to that. But, much like Paul Reubens’ star turn in Buffy The Vampire Slayer (the movie, not the show), public nuisance is the vampire that just refuses to die, even when the end-credits are rolling. In the past, we’ve seen plaintiffs’ lawyers look to expand non-traditional theories of recovery to the drug and device context – for example, medical monitoring, civil RICO, and consumer fraud, to name a few. Hopefully, whatever the Court does in American Electric, it will not lead to a rash of new (and, in our opinion, futile) public nuisance suits in other contexts. Even more hopefully, the Supreme Court could kill off this sort of “public nuisance” completely, at least as a matter of federal common law.
It will also be interesting to see how the Court handles the standing and justiciability questions in this case. The Second Circuit’s treatment of standing – whether the defendants “contribute” to global warming – is too loosey-goosey for our liking. In fact, the standing and injury quagmire that lurks in this public nuisance context seems analogous to some of our standing/injury complaints in other areas, such as – you guessed it – medical monitoring, civil RICO, and consumer fraud, so we’ll be watching to see how the Court tackles these issues, and whether what it says impacts anything we do.
Finally, what about the question of whether courts should even be in the business of piecemeal quasi-regulation where there’s already a regulator at work? Well, that’s an issue you may have heard us talk about from time to time. Look at how the defendants’ certiorari petition characterizes the plaintiffs’ theory – it seeks “imposition of a judicially-fashioned series of piecemeal regulatory regimes.” Cert. Pet. at 20. Sounds like something that could come straight out of a preemption brief. To be sure, the political question/justiciability questions go beyond the Supremacy Clause considerations underlying preemption, but it will nevertheless be worth watching to see whether this Court will continue its seeming trend of indifference to federal regulators.
Now don’t get us wrong – we strongly believe that this public nuisance lawsuit is sui generis, and you have to be careful reading too much into decisions like this. (Of course, that won’t stop us from declaring that public nuisance is finally kaput if the Court drives a stake through the public nuisance vampire’s heart). But we’ll certainly follow this case, to see whether there’s anything we can learn, or anything to beware, from whatever decision the Court ultimately makes.