On December 6, 2010, the United States Supreme Court (“Supreme Court”) granted a petition from a group of electric utilities for a writ of certiorari seeking review of the decision of the United States Court of Appeals for the Second Circuit (“Second Circuit”) in Connecticut v. AEP.  The case concerns whether greenhouse gas emitters may be sued in tort on a theory that their emissions, by assertedly causing climate change, constitute a public nuisance.

The lawsuit was originally brought in the United States District Court for the Southern District of New York by eight states, the City of New York and several environmental parties against five electric utilities.  The suit alleged that the companies’ coal-fired plant emissions were a significant cause of global warming and constituted a public nuisance actionable in tort.  The District Court dismissed the case in 2005, holding that the lawsuit presented a “political question” that was not appropriate for judicial resolution.  However, in September 2009, the Second Circuit overturned the District Court, found that the plaintiffs properly stated a cause of action for “public nuisance,” and rejected Defendants’ argument that Clean Air Act regulation of greenhouse gases displaced Plaintiffs’ federal common law nuisance claims (see March 12, 2010 edition of the WER).

Granting the petition for certiorari does not mean that the Supreme Court will overturn the Second Circuit decision, only that the Supreme Court will now consider the issues on the merits.  One development of note is that Justice Sonia Sotomayor recused herself from considering the petition and will undoubtedly also recuse herself from the merits decision.  Justice Sotomayor was on the Second Circuit panel that heard oral argument on Connecticut v. AEP, but recused herself from taking part in the Second Circuit’s decision after learning of her nomination to the Supreme Court.