Academic

In what could be a big, big case, the 2d Circuit just permitted a federal common law nuisance suit to go forward against power companies that contribute to greenhouse gas emissions.  As you might imagine, the interplay between this and Massachusetts v. EPA, the Supreme Court's greenhouse gas case, is quite complicated.  UDPATE: Here's Jonathan Adler on the case, treading much of the same ground ... only a day earlier.  But some observations:

• Standing here would presumably extend to every property owner in the country ... and possibly the world.  Standing isn't supposed to permit generalized grievances to be pursued in court, and so I see that as a problem if Supreme Court review is sought...but many of the plaintiffs here are states, who get that specialized standing as a result of Massachusetts v. EPA (it's a bit more controversial with the trust plaintiffs who, at least in my view, look a like like other private property owners).
• Is the injury redressable?  The Second Circuit thinks that this argument has been resolved: "Defendants? assertions echo their arguments for nonjusticiability under the political question doctrine: because global warming is a world-wide problem, federal courts are not the proper venue for this action, nor could the courts redress the injuries about which Plaintiffs complain because global warming will continue despite any reduction in Defendants? emissions. Massachusetts disposed of this argument. The Court recognized that regulation of motor vehicle emissions would not ?by itself reverse global warming,? but that it was sufficient for the redressability inquiry to show that the requested remedy would ?slow or reduce it.?
• The case was argued in 2006.  Sonja Sotomayor presided.  Interesting, no, that somehow a decision wasn't rendered until her confirmation over three years later?  On the other hand, the opinion, which is over 100 pages long, must have taken quite a while to write.
• 3 GOP appointees on the unanimous panel, in what is undoubtedly some creative litigation spearheaded by environmental activists (viz, the NRDC), though pursued both by them and by states.
• In theory, people like Richard Epstein should be overjoyed at this use of a common law cause of action to achieve a regulatory end.  Bet he won't be, though.  Which shows that it's a bit silly to argue that regulation is bad, and common law is good (or vice versa) without knowing the ends to which the two governance techniques is being put.

After the jump, the court's quick and dirty summary of the opinion.  I can't imagine the Supreme Court won't be looking at this very closely - the implications are vast.

From the opinion summary: