No. 10-174Supreme Coud, U.S.

FILED

~FP ~- 2010OFFICE OF THE.,CLERK

upreme ourt of niteb tate

AMERICAN ELECTRICPOWER COMPANY INC., et al.,

Petitioners,v.

STATE OF CONNECTICUT, et al.,

Respondents.

On Petition For A Writ Of CertiorariTo The United States Court Of Appeals

For The Second Circuit

BRIEF OF LAW PROFESSORSAS AMICI CURIAE IN SUPPORT

OF PETITIONERS

DAVID B. RIVKIN, JR.Counsel of Record

LEE A. CASEYMARK W. DELAQUILBAKER & HOSTETLER LLPWashington Square, Suite 11001050 Connecticut Ave., N.W.Washington, D.C. 20036drivkin@bakerlaw.com(202) 861-1500

Counsel for Amici Curiae

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964OR CALL COLLECT (402~ 342-2831

B~ank pag6

TABLE OF CONTENTSPage

TABLE OF AUTHORITIES ................................. ii

INTEREST OF AMICI CURIAE ......................... 1

SUMMARY OF THE ARGUMENT ...................... 3

ARGUMENT ........................................................ 6

I. The Second Circuit’s Decision PresentsRecurring Issues Of Great National Im-portance ..................................................... 6

A. Greenhouse Gas Public Nuisance Ac-tions Are The Wrong Mechanism ForAddressing An Issue Of Manifest Im-portance To The Nation, Global Cli-mate Change ........................................

II.

CONCLUSION .....................................................

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B. The Second Circuit’s Decision Pre-sents A Recurring Problem That TheCourt Should Resolve Now .................. 10

C. The Second Circuit’s Decision HasNegative Ramifications For The Judi-cial And Political Processes .................12

The Second Circuit’s Decision Is Errone-ous .............................................................. 18

A. Respondents Lack Standing BecauseThe Court Cannot Redress Their Al-leged Injuries ....................................... 18

B. Respondents’ Claims Present A Non-Justiciable Political Question .............20

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ii

TABLE OF AUTHORITIESPage

CASES:

American Isuzu Motors, Inc. v. Ntsebeza, 553U.S. 1028 (2008) ......................................................17

Antolok v. United States, 873 F.2d 369 (D.C.Cir. 1989) .................................................................21

Baker v. Carr, 369 U.S. 186 (1962) ............................21Bendix Autolite Corp. v. Midwesco Enterprises,

Inc., 486 U.S. 888 (1988) ...........................................9California v. Gen. Motors Corp., No. C06-

05755, 2007 WL 2726871 (N.D. Cal. Sept. 17,2007), appeal dismissed, No. 07-16908 (9thCir. June 24, 2009) ...................................... 10, 22, 23

Chicago & Southern Air Lines, Inc. v. Water-man S.S. Corp., 333 U.S. 103 (1948) ......................21

City of Milwaukee v. Illinois, 451 U.S. 304(1981) .......................................................................15

Comer v. Murphy Oil USA, 585 F.3d 855 (5thCir. 2009), reh’g granted, 598 F.3d 208 (5thCir. 2010), appeal dismissed, 607 F.3d 1049(5th Cir. 2010) ........................................... 1, 3, 10, 16

Connecticut v. Am. Elec. Power Co., 406F. Supp. 2d 265 (S.D.N.Y. 2005) .......................22, 24

Connecticut v. Am. Elec. Power Co., 582 F.3d309 (2d Cir. 2009) ............................................ passim

Japan Whaling Ass’n v. Am. Cetacean Soc’y,478 U.S. 221 (1986) .................................................22

oooIII

TABLE OF AUTHORITIES - ContinuedPage

Korsinsky v. EPA, No. 05-cv-859 (NRB), 2005WL 2414744 (S.D.N.Y. Sept. 29, 2005) ...............4, 10

Lujan v. Defenders of Wildlife, 504 U.S. 555(1992) .......................................................................19

Marbury v. Madison, 5 U.S. (1 Cranch) 137(1803) .................................................................14, 20

Massachusetts v. EPA, 549 U.S. 497 (2007) .......passim

Milwaukee v. Illinois, 451 U.S. 304 (1981) ..................8

Native Vill. of Kivalina v. ExxonMobil Corp.,663 F. Supp. 2d 863 (N.D. Cal.2009) .................................................. 4, 10, 22, 23, 24

Nixon v. United States, 506 U.S. 224 (1993) .............22

North Carolina v. TVA, No. 09-1623, 2010 WL2891572 (4th Cir. July 26, 2010) ................ 1, 4, 8, 10

Northwest Airlines, Inc. v. Transport Workers,451 U.S. 77 (1981) ...................................................23

O’Melveny & Myers v. FDIC, 512 U.S. 79(1994) .................................................................14, 23

Simon v. E. Ky. Welfare Rights Org., 426 U.S.26 (1976) ..................................................................20

United States ex rel. Joseph v. Cannon, 642F.2d 1373 (D.C. Cir. 1981) .......................................22

Vieth v. Jubelirer, 541 U.S. 267 (2004) ......................21

Warth v. Seldin, 422 U.S. 490 (1975) .........................20

iv

TABLE OF AUTHORITIES - ContinuedPage

CONSTITUTION, STATUTES~ AND REGULATIONS:

28 U.S.C. § 1350 .........................................................1774 Fed. Reg. 56,264 (2009) .........................................1574 Fed. Reg. 66,4977 (2009) .......................................1575 Fed. Reg. 25,324 (2010) .........................................1575 Fed. Reg. 31,514 (2010) .........................................1575 Fed. Reg. 31,540 (2010) .........................................11U.S. Const. Art. I ........................................................14

OTHER AUTHORITIES:

American Clean Energy and Security Act of2009, H.R. 2254, lllth Cong. (2009) ......................12

Gabriel Nelson, Obama Admin Urges SupremeCourt to Vacate "Nuisance" Ruling, Green-wire (Aug. 25, 2010) ................................................13

Gene J. Koprowski, Global Warming AdvocatesThreaten Blizzard of Lawsuits, FOXNews(Mar. 29, 2010) ........................................................11

Judicial Watch, Judicial Financial DisclosureDatabase, http://www.judicialwatch.org/judicial-financial-disclosure ....................................17

Key Judge Downplays Prospects for SuccessfulClimate Damages Suits, Inside EPA, Mar. 5,2010 .........................................................................14

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TABLE OF AUTHORITIES - ContinuedPage

Laurence H. Tribe, et al., Too Hot for CourtsTo Handle: Fuel Temperatures, Global Warm-ing, and the Political Question Doctrine15 (Wash. Legal Found., Working Paper No.169, 2010) .................................................... 11, 20, 22

Mark Latham, Environmental Liabilities andFederal Securities Laws: A Proposal for Im-proved Disclosure of Climate Change-RelatedRisks, 39 Envtl. L. 647 (2009) ..................................4

Press Release, Connecticut Attorney General’sOffice, Attorney General Praises AppealsCourt Ruling Reinstating Global WarmingLawsuit (Sept. 21, 2009) .........................................24

Restatement (Second) of Torts (1979) ...........................9

Robin Bravender, Carbon Cap Likely DeadThis Year -Lieberman, EENews PM (July29, 2010) ..................................................................12

W. Keeton, et al., Prosser and Keeton on TheLaw of Torts (5th ed. 1984) .......................................8

William L. Prosser, Nuisance Without Fault, 20Tex. L. Rev. 399 (1942) ..............................................4

Blank Page

INTEREST OF AMICI CURIAE1

Amici curiae are law professors with an interestand expertise in constitutional, administrative,environmental, and general issues of regulatory lawissues. Each is concerned with the status and devel-opment of the law in these areas, and believes thatthe questions raised by this case are of the highestimportance and merit the Supreme Court’s exercise ofits discretion to review the Second Circuit’s decision.Many have participated as amici to courts of appealsthat have considered public nuisance actions broughtagainst emitters of greenhouse gases or conventionalpollutants, including the proceedings below and thosein Comer v. Murphy Oil USA, 585 F.3d 855 (5th Cir.2009), reh’g granted, 598 F.3d 208 (5th Cir. 2010),appeal dismissed, 607 F.3d 1049 (5th Cir. 2010),and North Carolina v. TVA, No. 09-1623, 2010 WL2891572 (4th Cir. July 26, 2010).

John S. Baker, Jr., is the Dale E. Bennett Profes-sor of Law (retired), Louisiana State University LawCenter. He has written widely on the U.S. legal

1 Pursuant to Supreme Court Rule 37.6, counsel for amicirepresents that it entirely authored this brief and no party, itscounsel, or any other entity but amici and their counsel made amonetary contribution to fund the briefs preparation or submis-sion. All parties have consented to the filing of this brief, andundersigned counsel notified Counsel of Record for all parties ofamici curiae’s intent to file this brief at least 10 days beforeSeptember 3, 2010. Letters reflecting their consent are filed withthe Clerk.

system, separation of powers, administrative law, andtort law.

Steven G. Calabresi is the George C. Dix Profes-sor of Law, Northwestern University Law School,where he teaches administrative law, comparativelaw, and constitutional law.

Honorable Ronald A. Cass, Dean Emeritus ofBoston University School of Law, has written andtaught about administrative law for more than 30years. He is co-author of a leading text on adminis-trative law, a former federal regulatory official, andremains deeply engaged with matters of administra-tive and judicial process.

Robert A. Destro is Professor of Law and directorand founder of the Interdisciplinary Program in Law& Religion, Catholic University of America, ColumbusSchool of Law. He teaches and has written extensive-ly on constitutional law.

Jason S. Johnston is the Henry L. and GraceDoherty Charitable Foundation Professor of Law andNicholas E. Chimicles Research Professor of BusinessLaw and Regulation, University of Virginia School ofLaw. His recent research has focused on the law andeconomics of climate change policy, and he teachescourses in natural resource law, law and economics,and climate change law.

Stephen B. Presser is the Raoul Berger Professorof Legal History, Northwestern University Law

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School, where he teaches American jurisprudence andlegal history.

Ronald D. Rotunda is the Doy & Dee HenleyChair and Distinguished Professor of Jurisprudence,Chapman University School of Law. He is the authorof leading course books on constitutional law andlegal ethics and is co-author of a six-volume treatiseon constitutional law.

John C. Yoo is Professor of Law, University ofCalifornia, Boalt Hall, where he teaches constitution-al law and history.

The views expressed herein are those of theindividual amici curiae, and do not necessarily repre-sent the views of any group or organization withwhich they may be affiliated.

SUMMARY OF THE ARGUMENT

Far from being an "ordinary tort suit" the SecondCircuit’s decision below in Connecticut v. AmericanElectric Power Co., 582 F.3d 309 (2d Cir. 2009), is anattempt to judicially regulate greenhouse gas emis-sions from the entities Respondents allege are thefive largest greenhouse gas emitters in the UnitedStates. Respondents’ action is part of a broader,misguided push for judicial regulation, and is mir-rored by suits brought by Gulf Coast residents, seeComer v. Murphy Oil USA, 585 F.3d 855 (5th Cir.2009), reh’g granted, 598 F.3d 208 (5th Cir. 2010),

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appeal dismissed, 607 F.3d 1049 (5th Cir. 2010),Native Americans, see Native Vill. of Kivalina v.ExxonMobil Corp., 663 F. Supp. 2d 863 (N.D. Cal.2009), appeal pending, No. 09-17490 (9th Cir. Nov. 5,2009), and officious intermeddlers, see Korsinsky v.EPA, No. 05-cv-859 (NRB), 2005 WL 2414744(S.D.N.Y. Sept. 29, 2005). The initial targets of theseattempts at judicial regulation have been America’score industries - electric utilities, automobile manu-facturers, energy producers, and chemical companies- but the legal principles underlying these suits couldextend to any business that emits greenhouse gases.

Greenhouse gas emissions should not, however,be regulated in accordance with "the same principleswe use to regulate prostitution, obstacles in high-ways, and bullfights." North Carolina v. TVA, No. 09-1623, 2010 WL 2891572 (4th Cir. July 26, 2010). Theeffects that this decision and its sister actions couldhave on the United States economy are undisputed:liability in this and other cases could amount tobillions of dollars. See Mark Latham, EnvironmentalLiabilities and Federal Securities Laws: A Proposalfor Improved Disclosure of Climate Change-RelatedRisks, 39 Envtl. L. 647,666 (2009).

The harm that the Court of Appeals’ decisioncauses to the political and judicial processes is no lesstroubling. Greenhouse gas public nuisance suits havepoisoned the judiciary by giving judges the opportu-nity to use this "legal garbage can" of a tort, seeWilliam L. Prosser, Nuisance Without Fault, 20 Tex.L. Rev. 399, 410 (1942), as a prod for advancing their

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preferred political agenda. This is not an appropriaterole for a judiciary that must say what the law is, notwhat it ought to be. Greenhouse gas public nuisanceactions threaten to allow litigants to undermine thejudicial process in another way - through the veryrecusal system that is supposed to protect judicialintegrity. With legal theories under which nearly anybusiness is a potential defendant, plaintiffs have thepower to "pick and choose" their judges through theselection of defendants in which disfavored judgeshave publicly disclosed their financial holdings. Thisthreatens neutrality, impartiality, and ultimately theperception and reality of justice.

All of this might not matter if the Second Cir-cuit’s holding were correct, but it is not. Every districtcourt that has been presented with a greenhouse gaspublic nuisance action has determined that it wouldbe impossible to reach a principled resolution withoutoverstepping the constitutional limits on judicialpower. These courts have rightfully abstained frommaking piecemeal environmental policy on the basisof testimony proffered by a handful of paid expertsand in the face of serious and significant political andadministrative disputes about how best to addressthe global phenomenon of climate change.

The Court has previously recognized the "unusu-al importance" of EPA’s statutory authority to regu-late greenhouse gas emissions under the Clean AirAct. Massachusetts v. EPA, 549 U.S. 497, 506 (2007).Definitive resolution of whether federal common lawprovides an avenue for piecemeal judicial regulation

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of greenhouse gas emissions is no less important. TheCourt should grant certiorari and finally determinewhether it is the province of the judiciary or thepolitical branches to set global warming policy.

ARGUMENTI. The Second Circuit’s Decision Presents

Recurring Issues Of Great National Im-portance.

This case presents recurring questions of greatimportance that only this Court can resolve. The tortof public nuisance is neither an effective nor anappropriate mechanism for addressing the complexscientific, social, economic, and political issues in-volved in environmental protection and management,let alone those surrounding the phenomenon of globalclimate change. The Second Circuit’s decision, howev-er, threatens to make it the primary regulatory tool inthat court’s footprint and throughout the country. TheSecond Circuit’s decision may also distort the politicaland administrative processes, and it gives plaintiffsan opportunity to undermine the legitimacy of thecourts. The Court should grant certiorari to decidethe questions presented by the Petitioners.

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A. Greenhouse Gas Public Nuisance Ac-tions Are The Wrong Mechanism ForAddressing An Issue Of Manifest Im-portance To The Nation, Global ClimateChange.

There is no dispute that global climate change isan issue of paramount national importance. In Mas-sachusetts v. EPA, this Court expressly found thatglobal climate change was sufficiently important tojustify the Court’s exercise of its certiorari jurisdic-tion in the absence of a circuit split and in the face ofvery serious jurisdictional issues: "Notwithstandingthe serious character of th[e] jurisdictional argumentand the absence of any conflicting decisions ... , theunusual importance of the underlying issue persuad-ed us to grant the writ." 549 U.S. at 505-06. The courtbelow has similarly attested to the importance of theissues this action seeks to address: "It cannot begainsaid that global warming poses serious economicand ecological problems that have an impact on bothdomestic politics and international relations." Con-necticut, 582 F.3d at 325.

In light of the importance of these issues, it iscritical that any regulatory program addressinggreenhouse gas emissions be the product of a politicalprocess that balances the myriad of interests at stakeand that is able to arrive at manageable standards.In a recent decision reversing a district court decisionfinding that conventional pollutant emissions fromTVA power plants in the State of Tennessee constitutea public nuisance in the State of North Carolina, the

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United States Court of Appeals for the Fourth Circuitconvincingly explained why public nuisance law is notup to this task:

[W]hile public nuisance law doubtless en-compasses environmental concerns, it doesso at such a level of generality as to providealmost no standard of application. If we areto regulate smokestack emissions by thesame principles we use to regulate prostitu-tion, obstacles in highways, and bullfights,we will be hard pressed to derive any man-ageable criteria by which to make decisions.

North Carolina, 2010 WL 2891572 at *7 (Wilkinson,J.) (citations omitted). This Court has recognized the"often vague and indeterminate" nature of nuisancelaw as well. Milwaukee v. Illinois, 451 U.S. 304, 317(1981). See also W. Keeton, et al., Prosser and Keetonon The Law of Torts § 86, at 616 (5th ed. 1984) (foot-notes omitted) ("There is perhaps no more impene-trable jungle in the entire law than that whichsurrounds the word ’nuisance.’ It has meant all thingsto all people, and has been applied indiscriminately toeverything from an alarming advertisement to acockroach baked in a pie."). And make no mistake,public nuisance determinations - especially thosemade with respect to a gas that is emitted by virtual-ly every corporate and natural person on the planet tocontribute collectively and indistinguishably to aglobal phenomenon - are regulation.

The decision below reflects nuisance law’s short-coming. The legal standard articulated by the Second

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Circuit is whether Respondents’ activities constitute"an unreasonable interference with a right common tothe general public." Connecticut, 582 F.3d at 352.Determining what is and is not reasonable necessari-ly involves "weighing of the gravity of the harmagainst the utility of the conduct." Restatement (Se-cond) of Torts § 821B cmt. e (1979). A more vacuouslegal standard, particularly when applied outside ofthe traditional narrow framework of nuisance ac-tions, is hard to imagine - determining whether aparticular method for providing affordable, reliableelectric generation is more socially beneficial than itsparticular contribution to the harms Respondentsallege they will suffer is akin to "judging whether aparticular line is longer than a particular rock isheavy." Bendix Autolite Corp. v. Midwesco Enterpris-es, Inc., 486 U.S. 888, 897 (1988) (Scalia, J., dissent-ing). And while the federal judiciary is fully capable ofresolving complex cases and controversies, federaljudges are neither technical experts nor accountablepolitical actors. Courts should not use federal com-mon law and rely on dueling experts to set emissioncontrol limits (or to award monetary damages) whenconfronted with one of the most controversial andsignificant social, economic, environmental, andpolitical questions of our times.

The inevitable consequence of allowing theproliferation of global climate change tort claimswould be for different courts to establish differentlevels of, and rules for calculating, the "reasonable"level of emissions from the same class of facilities -

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and perhaps from the same facilities themselves. SeeNorth Carolina, 2010 WL 2891572 at *7 ("We arehardly at liberty to ignore the Supreme Court’sconcerns and the practical effects of having multipleand conflicting standards to guide emissions. Thesedifficulties are heightened if we allow multiple courtsin different states to determine whether a singlesource constitutes a nuisance."). The effect would beto hold every emitter subject to an uncertain stand-ard, while failing to establish any sort of viablenational climate change policy.

B. The Second Circuit’s Decision PresentsA Recurring Problem That The CourtShould Resolve Now.

Far from being unique, this action has parallelsboth in the Second Circuit and around the Country.As discussed in the Petition for a Writ of Certiorari,the United States Court of Appeals for the FifthCircuit was recently seized of this issue in Comer,and the United States Court of Appeals for the NinthCircuit is currently considering it in Kivalina, afteryet another appeal before it was voluntarily dis-missed. See California v. Gen. Motors Corp., No. C06-05755, 2007 WL 2726871 (N.D. Cal. Sept. 17, 2007),appeal dismissed, No. 07-16908 (9th Cir. June 24,2009). The present action was followed by acopycat suit, a "cut-and-paste" complaint by aprivate plaintiff that was dismissed because theplaintiff lacked standing. See Korsinsky v. EPA,

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No. 05-cv-859 (NRB), 2005 WL 2414744 (S.D.N.Y.Sept. 29, 2005).

Media reports suggest that the Second Circuit’sdecision, if left unchecked, will precipitate even morepublic nuisance actions. Gene J. Koprowski, GlobalWarming Advocates Threaten Blizzard of Lawsuits,FOXNews (Mar. 29, 2010), http://www.foxnews.com/scitech/2010/03/29/global-warming-advocates-threaten-blizzard-lawsuits/. The presence in New York of manylarge corporations makes it likely that the SecondCircuit will become the forum of choice for thesesuits. And given the ubiquity of greenhouse gasemissions, there is no shortage of potential defend-ants. Laurence H. Tribe, et al., Too Hot for Courts ToHandle: Fuel Temperatures, Global Warming, and thePolitical Question Doctrine 15 (Wash. Legal Found.,Working Paper No. 169, 2010) ("[C]limate changeresults only from the non-linear, collective impact ofmillions of fungible, climactically [sic] indistinguisha-ble, and geographically dispersed emitters."). EPA hasestimated that over 6 million different sources in theUnited States emit over 100 tons per year of carbondioxide equivalent emissions, and at least 15,000sources emit over 100,000 tons per year of carbondioxide equivalent emissions. See 75 Fed. Reg. 31,540(2010). If litigation is the appropriate response toglobal climate change, it is no exaggeration to saythat the only appropriate litigation would have toinclude virtually every natural and corporate personworldwide as simultaneous plaintiffs and defendants.

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C. The Second Circuit’s Decision Has Neg-ative Ramifications For The JudicialAnd Political Processes.

Beyond being an issue of great national im-portance that will recur in the Second Circuit andother federal courts, public nuisance actions based ongreenhouse gas emissions pose unique challenges tothe judicial and political processes.

The Court previously had the opportunity toconsider the multitude of legislative enactmentsaddressing global climate change. Massachusetts, 549U.S. at 506-07. The legislative process continues: theHouse of Representatives passed a greenhouse gasemission control bill earlier this term, AmericanClean Energy and Security Act of 2009, H.R. 2254,lllth Cong. (2009), but the leading greenhouse gasbill in the Senate has lost sponsors and appearsunlikely to be enacted, see Robin Bravender, CarbonCap Likely Dead This Year - Lieberman, EENews PM(July 29, 2010), http://www.eenews.net/eenewspm/2010/07/29/2/. (Notably, none of the major bills con-sidered by the House of Representatives or Senatecontains provisions that in any way resemble a publicnuisance remedy.) Extending common law publicnuisance liability to regulated entities exerts artifi-cial pressure on the political process and may drivethe political process in the direction of particularactions that would not otherwise occur:

Because the White House supports legis-lation to limit greenhouse gas emissions,

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many attorneys expected the Obama admin-istration[’s response to the Second Circuit’sdecision] to avoid criticizing a ruling thatcould become so disruptive that it wouldforce Congress to take action. JonathanZesloff, a law professor at the University ofCalifornia, Los Angeles, said in a recent blogpost that the White House would undermineits goals by siding with utilities.

If the Supreme Court does not take the case,he wrote, "then the only way to get rid of thesuit is for Congress to displace it. And the on-ly way for Congress to displace it is to passlegislation. As is the case with EPA authorityto regulate carbon, this puts more bargainingpower on the side that wants regulation."

Gabriel Nelson, Obama Admin Urges Supreme Courtto Vacate "Nuisance" Ruling, Greenwire (Aug. 25, 2010),http’]/www.eenews.net/Greenwire/2010/08/25/1/. Judicialpower should not, of course, be co-opted to nudge thepolitical process.

Beyond simply impacting the political processincidentally, the Second Circuit’s decision could allowjudges to use their positions as a tool for politicalaction. Judge Hall, the author of the Second Circuit’sdecision, has publicly expressed his hope that thedecision would prompt political action:

... Hall nevertheless said he hopes theruling and others like it will pressure boththe executive branch and Congress to im-plement climate policies, because its burden-some "nuisance action by nuisance action"

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approach is hanging over their heads like a"sword of Damocles."

"To the extent there is out there ... someopportunity to pursue or continue to pursuea nuisance action, that may help in a politi-cal sense," he said, at least to get the execu-tive branch moving to develop regulationsand to control the fight that will emerge onceregulations are promulgated. He also hopedthat the existence of this nuisance actionmay influence the Senate to provide 60 votesto pass a climate bill.

He said that until federal policies displacethe damages cases, "the litigation may pro-vide a backstop to the regulations and per-haps some small impetus [for regulatory andlegislative action]." He added that the litiga-tion is viable "at least in the 2nd Circuit."

Key Judge Downplays Prospects for Successful Cli-mate Damages Suits, Inside EPA, Mar. 5, 2010, at 18.

But "[i]t is emphatically the duty of the JudicialDepartment to say what the law is," and not what itought to be, Marbury v. Madison, 5 U.S. (1 Cranch)137, 177 (1803), and legislative power is vested inCongress, not the Judiciary. See U.S. Const. Art. I,§ 1. Federal common law accordingly is disfavored,and "cases in which judicial creation of a specialfederal rule would be justified ... are few and re-stricted." O’Melveny & Myers v. FDIC, 512 U.S. 79, 87(1994). It is neither legitimate nor consistent withthis Court’s jurisprudence to decide cases so as to

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spur political action, particularly where the toolwielded - federal common law - is disfavored underthe best of circumstances.

The Second Circuit’s decision would likewisenegatively impact the administrative process. Con-gress’ "establishment of a comprehensive regulatoryprogram supervised by an expert administrativeagency" displaces federal common law. City of Mil-waukee v. Illinois, 451 U.S. 304, 317 (1981). TheClean Air Act is just such a comprehensive regulatoryprogram supervised by an expert agency, the EPA,that has finalized the following rules in the time sincethe Second Circuit’s decision:

A greenhouse gas emission reporting rulethat EPA expects will inform any deci-sion about whether to regulate green-house gases. 74 Fed. Reg. 56,264 (2009).

An "endangerment finding" under CleanAir Act § 202 determining that green-house gases may reasonably be antici-pated to endanger public health orwelfare. 74 Fed. Reg. 66,4977 (2009).

A light-duty vehicle greenhouse-gas emis-sion control rule. 75 Fed. Reg. 25,324(2010).

A "tailoring rule" rewriting Congress’emission rate standards for the preven-tion of significant deterioration and TitleV permitting programs to allow for regu-lation of greenhouse gases. 75 Fed. Reg.31,514 (2010).

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When these regulatory actions are considered togeth-er, it is beyond cavil that EPA has regulated green-house gas emissions under the Clean Air Act both formobile sources and for stationary sources of the typethat Petitioners are alleged to operate. It is simply nolonger the case that "EPA has yet to make any deter-mination that such emissions are subject to regula-tion under the [Clean Air] Act, much less endeavoractually to regulate the emissions." Connecticut, 582F.3d at 381.

Finally, the decision below could allow futuregreenhouse gas public nuisance plaintiffs to under-mine the judicial process through the recusal system.Recusals have already been a problem in anothermajor greenhouse gas public nuisance action. InComer v. Murphy Oil USA, the United States Court ofAppeals for the Fifth Circuit granted rehearing andvacated a panel decision that would have allowed aputative class action to proceed on greenhouse gaspublic nuisance theories, but then dismissed theappeal for lack of quorum after one of the Judges whoparticipated in the decision to rehear the case en banclater recused herself. The Comer plaintiffs namedover thirty companies allegedly responsible for caus-ing or contributing to Hurricane Katrina, and hadlodged yet another complaint that included an addi-tional one hundred and ten companies.

Recusals similarly have been problematic inother situations where a multitude of major corpora-tions were named as defendants. For instance, thisCourt lacked a quorum to decide the petition for

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certiorari in American Isuzu Motors, Inc. v. Ntsebeza,553 U.S. 1028 (2008), an Alien Tort Statute, 28 U.S.C.§ 1350, action brought by victims of the South Africanapartheid regime against multinational corporationsthat did business with that country’s government.

Plaintiffs will attempt to ensure the most favora-ble consideration of their action by strategicallychoosing defendants to force the recusal of federaljudges they perceive to be unsympathetic to theirclaims. In the case of greenhouse gas public nuisanceclaims, this problem is uniquely acute, however,because of the lack of substance inherent in the causeof action and the corresponding lack of limitations onthe universe of potential defendants - millions ofsources in the United States emit significant quanti-ties of greenhouse gases. The costs of strategic de-fendant selection are also minimal. See JudicialWatch, Judicial Financial Disclosure Database, http://www.judicialwatch, org/judicial-financial-disclosure(offering, for free, "a browsable and searchable ar-chive of financial disclosure reports for all SupremeCourt justices, appellate court and district courtjudges"). This problem may be unavoidable wherecourts discharge their duty under federal statute, butcourts should not extend federal common law causesof action in situations that have a significant poten-tial for abuse, such as that presented here.

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II. The Second Circuit’s Decision Is Errone-ous.

The Second Circuit’s decision to exercise jurisdic-tion over Respondent’s claims was erroneous. InMassachusetts, this Court held that EPA could act toregulate greenhouse gases where Congress affirma-tively exercised its constitutional power and enacteda broad regulatory statute encompassing air qualityissues and that states could challenge EPA’s decisionnot to do so. What the Court did not hold was that thejudicial power extends outside the realm of congres-sionally articulated procedural rights to claims byStates or private actors. And without congressionalaction - either to establish standing by articulating achain of causation that the political branches deemedsufficient or to make initial policy determinations andset standards that provide substance for judicialadjudication - such suits have been, and remain,outside the set of cases and controversies that ArticleIII Courts may permissibly decide.

A. Respondents Lack Standing BecauseThe Court Cannot Redress Their AI.leged Injuries.

The Second Circuit erred in determining that theRespondents had standing to bring their greenhousegas public nuisance claims. Massachusetts held onlythat States, in their parens patriae capacity, couldchallenge EPA’s rational for refusing to act under theClean Air Act, in which Congress defined the injuryand articulated the chain of causation giving rise to a

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case or controversy where none existed before. 549U.S. at 516 (citing Lujan v. Defenders of Wildlife, 504U.S. 555, 580 (1992) (Kennedy, J., concurring in partand concurring in judgment)). Even the SecondCircuit recognized the significance of Congress’ crea-tion of this procedural right and stated that it "was ’ofcritical importance to the standing inquiry’" becauseit allowed the Massachusetts petitioners to avoidmeeting "’all the normal standards for redressabilityand immediacy’" incumbent on plaintiffs in federalcourt. Connecticut, 582 F.3d at 309 (quoting Massa-chusetts, 549 U.S. at 516-17).

Despite the undisputed fact that the Respondentsasserted no statutory procedural right, the SecondCircuit held that Massachusetts "disposed of" theargument that courts may not "redress the injuriesabout which Plaintiffs complain because global warm-ing will continue despite any reduction in Defendants’emissions." Connecticut, 582 F.3d at 348. That issimply not the case. The Respondents in this actionhave alleged no more than that the remedy they seekwould "achieve the ... share of the ... reductionsnecessary to significantly slow the rate and magni-tude of warming." Compl. ~I148, No. 04-5669(S.D.N.Y. July 21, 2004). But they did not, and can-not, allege that the relief requested would actuallyslow the rate and magnitude of warming.Redressability is not plausible, given that Petitioners’emissions are a very small portion of the historic,global pool of accumulated carbon in the atmosphere.Moreover, the effectiveness of any relief depends on

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speculation about the actions of third parties. Andregardless of the outcome of this action, emissionsfrom China, India, and other jurisdictions beyond theCourt’s control have the final word on whether Re-spondents will suffer the injuries alleged under theirown theory of the case.

The political branches have the prerogative tolegislate futile administrative schemes, but at thevery least it is not within the purview of the federaljudiciary to speculate about the actions of thirdparties, see Simon v. E. Ky. Welfare Rights Org., 426U.S. 26, 41-42 (1976); Warth v. Seldin, 422 U.S. 490,509 (1975), or otherwise to entertain suits where thePlaintiffs cannot allege that their requested reliefwould redress their injury. The Court should grantcertiorari and reverse the Second Circuit’s decision onstanding.

B. Respondents’ Claims Present A Non-Justiciable Political Question.

The claims Respondents presented in the courtbelow present a non-justiciable political question. "[I]thas been axiomatic throughout our constitutionalhistory that there exist some questions beyond theproper reach of the judiciary." Tribe, supra, at 3.Article III power therefore does not extend to situa-tions where courts cannot assign responsibility inthe absence of antecedent legal principles reflectingthe political branches’ policy judgments. See id. (cit-ing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170

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(1803), and Baker v. Carr, 369 U.S. 186, 217 (1962)).Two specific circumstances that place a case outsideArticle III jurisdiction are the "lack of judiciallydiscoverable and manageable standards for resolving"the issue and "the impossibility of deciding withoutan initial policy determination of a kind clearly fornonjudicial discretion." Baker, 369 U.S. at 217. Tortclaims may state political questions. See Antolok v.United States, 873 Fo2d 369, 383 (D.C. Cir. 1989)(Sentelle, J.)o

Contrary to the Second Circuit’s decision, thereare no judicially discoverable and manageable stand-ards for resolving Respondents’ claims. Questionsthat are "delicate, complex, and involve large ele-ments of prophecy," Chicago & Southern Air Lines,Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948),or that would plunge the court into a "sea of impon-derables," Vieth v. Jubelirer, 541 U.S. 267, 290 (2004)(plurality opinion), lack judicially discoverable andmanageable standards. Every district court that hasbeen asked to adjudicate a greenhouse gas publicnuisance action has recognized that the issue simplyis not decidable - absent any standards, there issimply no principled way for a federal judge to resolvewhether the safe, reliable, and affordable productionof energy, including a retrospective analysis of alter-natives available in the past, does or does not out-weigh the possible future benefits of potentiallyreducing the occurrence of adverse weather events,taking into account both whether emissions wouldhave leaked to a foreign country and the impact of

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emissions from millions of other sources. See Kiva-lina, 663 F. Supp. 2d 863; Connecticut v. Am. Elec.Power Co., 406 F. Supp. 2d 265 (S.D.N.Y. 2005);California, 2007 WL 2726871.

The "difficulty of fashioning relief" also evidenc-es a lack of judicially discoverable and manageablestandards. Nixon v. United States, 506 U.S. 224, 236(1993). Parallel to the inability of courts to redressthe injuries Respondents allege is courts’ inability tobind parties that are not before them, which "auto-matically makes [courts] institutionally ill-suited toentertain lawsuits concerning problems [as] irreduci-bly global and interconnected in scope" as globalclimate change. Tribe, supra, at 21. The federaljudiciary’s inability to remedy effectively Respon-dents’ alleged harm further evidences the existence inthis action of a non-justiciable political question thatthe Second Circuit disregarded.

The Second Circuit also failed to recognize thatdeciding Respondents’ claims would require it to makean initial policy determination of a kind clearly unfitfor judicial discretion. This Court has recognized thatfederal judges "have neither the expertise nor theauthority to evaluate ... policy judgments" concern-ing whether and how to regulate greenhouse gasemissions. Massachusetts, 549 U.S. at 533; see alsoJapan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S.221, 230 (1986) (quoting United States ex rel. Josephv. Cannon, 642 F.2d 1373, 1379 (D.C. Cir. 1981)("’courts are fundamentally underequipped to formu-late national policies or develop standards for matters

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not legal in nature’"). Determining whether Peti-tioners’ methods for providing affordable, reliableenergy (or the frequency with which they use thosemethods) are more or less socially beneficial than theharms to which the Petitioners are alleged to contrib-ute, considered in the context of millions of contrib-uting emitters beyond the Court’s control, requires apolicy judgment that the political branches havestruggled for decades to make. In addition to simplybeing an ineffective way to regulate greenhouse gasemissions, this determination requires far more thanan inquiry into what is or is not "reasonable." See,e.g., California, 2007 WL 2726871, at **6-7; accordO’Melveny & Myers, 512 U.S. at 89 (refusing to createfederal common law tort malpractice liability stand-ards because "[w]hat sort of tort liability to impose onlawyers and accountants ... who provide services tofederally insured financial institutions ... ’involves ahost of considerations that must be weighed andappraised’" and "’is more appropriately for those whowrite the laws, rather than for those who interpretthem") (quoting Northwest Airlines, Inc. v. TransportWorkers, 451 U.S. 77, 98 n.41 (1981)).

Reversing the district court’s decision requiredthe Second Circuit to make other contentious policydeterminations. The Second Circuit sub silentio choseto decide whether particular types of greenhouse gasemission limits should be or should have been im-posed on emitters - the very same policy determina-tion with which the political branches are currentlygrappling. See Kivalina, 663 F. Supp. 2d at 876-77;

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Connecticut v. Am. Elec. Power Co., 406 F. Supp. 2d265, 272 (S.D.N.Y. 2005). The Second Circuit alsodecided sub silentio that Petitioners should be re-quired to bear the cost of remedying any harms thatRespondents can prove were caused by greenhousegas emissions. See Kivalina, 663 F. Supp. 2d at 877("Plaintiffs are.., asking this Court to make a politi-cal judgment that the two dozen Defendants namedin this action should be the only ones to bear the costof contributing to global warming .... [T]he allocationof fault - and cost - of global warming is a matterappropriately left for determination by the executiveor legislative branch in the first instance."). These areinherently political questions.

The Court should grant certiorari and hold thatRespondents’ claims present a political question thatcannot be considered or resolved by the federalcourts.

CONCLUSION

After the Second Circuit issued its decision,Connecticut Attorney General Richard Blumenthalstated that it "set a precedent for all who threatenour planet." Press Release, Connecticut AttorneyGeneral’s Office, Attorney General Praises AppealsCourt Ruling Reinstating Global Warming Lawsuit(Sept. 21, 2009). Whether or not Petitioners’ allegedactions "threaten our planet," the precedent setby the decision below is erroneous, places undue

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pressure on the political and judicial processes, andlicenses wasteful legal actions in areas beyond thejudicial competence. For the foregoing reasons, aswell as the reasons set forth by Petitioners and theirother Amici, the petition for a writ of certiorari shouldbe granted, and the Second Circuit’s decision shouldbe reversed.

Respectfully submitted,

DAVID B. RIVKIN, JR.Counsel of Record

LEE A. CASEYMARK W. DELAQUILBAKER & HOSTETLER LLPWashington Square, Suite 11001050 Connecticut Avenue, N.W.Washington, D.C. 20036drivkin@bakerlaw.com(202) 861-1500Counsel for Amici Curiae

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