No. 10-174

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SEP 2- 2010THE CLERK

bupreme q ourt of i nite btate

AMERICAN ELECTRIC POWER 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

AMICUS CURIAE BRIEF OF NATSO, INC.IN SUPPORT OF PETITIONERS

TRISTAN L. DUNCAN*WILLIAM F. NORTHRIPSARAH E. LYNN BALTZELLSHOOK, HARDY & BACON L.L.P.

2555 Grand BoulevardKansas City, Missouri 64108tlduncan@shb.com(816) 474-6550Attorneys for Amicus Curiae*Counsel of Record

September 2nd, 2010

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

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TABLE OF CONTENTSPage

TABLE OF CONTENTS ...................................... i

TABLE OF AUTHORITIES ................................. ivINTEREST OF AMICUS CURIAE ...................... 1

STATEMENT OF THE CASE .............................. 2

SUMMARY OF THE ARGUMENT ...................... 2

ARGUMENT ........................................................ 4I. THE SECOND CIRCUIT DECISION

VIOLATES THE CORE POSTULATE OFTHIS COURT’S POLITICAL QUESTIONDOCTRINE JURISPRUDENCE, WHICHREJECTS "SEMANTIC CATALOGUING"AND CONFINES ARTICLE III COURTSTO A LAW APPLICATION, NOT LAWCREATION, FUNCTION ............................ 4A. Certiorari Is Warranted Because The

Second Circuit’s Attribution Of Deci-sive Significance To The Label At-tached To The Plaintiffs’ Cause OfAction, And Its Corresponding FailureTo Dissect The Application Of ThatCause Of Action To The Underlying Is-sue Of Climate Change, Conflicts WithThe Core Commands Of This Court’sRelevant Political Question DoctrineDecisions ................................................ 8

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II.

III.

TABLE OF CONTENTS - ContinuedPage

B. The Second Circuit’s Category RootError Stemmed From Its MistakenEquation Of Climate Change WithTraditional Air Pollution Cases When,In Fact, Climate Change Cases InvolveDifferences In Kind, Not Just Degree,From Ordinary Nuisance Cases ........... 11

BY CONTRADICTING THE METHOD-OLOGY EMPLOYED BY SEVERALCOURTS OF APPEALS AND THE EX-PLICIT HOLDINGS OF TWO DISTRICTCOURTS, THE SECOND CIRCUITCOMPOUNDED THE DOCTRINAL CON-FUSION SURROUNDING THE POLITI-CAL QUESTION DOCTRINE REQUIRINGTHIS COURT’S IMMEDIATE GUID-ANCE ........................................................... 13THE CIRCUITS ARE SPLIT OVERWHETHER MERE CONTRIBUTION TOA GENERALIZED ENVIRONMENTALPROBLEM, WITHOUT MORE, CANGENERATE STANDING ............................ 19A. The Second Circuit Split From The

Majority Approach, Which Finds NoArticle III Standing Under The "Con-tribution Test" Unless The PlaintiffCan Identify A Geographically Discrete"Zone Of Discharge" In Which She Suf-fers Injury .............................................. 20

B. Plaintiffs’ Claims Should Be Barred As"Generalized Grievances.". ....................23

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TABLE OF CONTENTS - ContinuedPage

IV. THESE IMPORTANT ARTICLE IIIJUSTICIABILITY QUESTIONS HAVENOT BEEN, BUT SHOULD BE, SET-TLED BY THIS COURT BECAUSEPERMITTING COMMON LAW NUI-SANCE DOCTRINE, WHICH IS FUN-DAMENTALLY ILL-SUITED TOGRAPPLE WITH THE NATIONAL ANDINTERNATIONAL POLICY COMPLEXI-TIES OF CLIMATE CHANGE, RISKSCREATING SERIOUS AND IRREVERSI-BLE HARM .................................................. 24

CONCLUSION ....................................................... 26

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TABLE OF AUTHORITIESPage

CASES

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

Inc., 486 U.S. 888 (1988) .........................................12Bennett v. Spear, 520 U.S. 154 (1997) .......................20Buckley v. Valeo, 424 U.S. 1 (1976) ..............................5California v. General Motors Corp., No. C06-

05755, 2007 WL 2726871 (N.D. Cal. 2007) ......14, 15Carmichael v. Kellogg, Brown & Root Serv.,

Inc., 572 F.3d 1271 (llth Cir. 2009) .......................14Comer v. Murphy Oil, 585 F.3d 855 (5th Cir.

2009), opinion vacated pending reh’g en banc,598 F.3d 208, appeal dismissed, 607 F.3d1049 (5th Cir. 2010) ................................................15

Connecticut v. Am. Elec. Power, 406 F. Supp. 2d265 (S.D.N.Y. 2005) .................................................12

Connecticut v. Am. Elec. Power, 582 F.3d 309(2d Cir. 2009) ................................................... passim

Corrie v. Caterpillar, Inc., 503 F.3d 974 (9thCir. 2007) .................................................................14

El-Shifa Pharm. Indus v. United States, 607F.3d 836 (D.C. Cir. 2010) .........................................14

Friends of the Earth, Inc. v. Crown Cent. Petro-leum Corp., 95 F.3d 358 (5th Cir. 1996) .................21

Friends of the Earth, Inc. v. Gaston Copper Re-cycling Corp., 204 F.3d 149 (4th Cir. 2000) ......21, 22

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TABLE OF AUTHORITIES - ContinuedPage

Gilligan v. Morgan, 413 U.S. 1 (1973) .........................9

Harbury v. Hayden, 522 F.3d 413 (D.C. Cir.2008) ........................................................................16

In re African-American Slave DescendantsLitig., 471 F.3d 754 (7th Cir. 2006) .........................16

INS v. Chada, 462 U.S. 919 (1983) ..............................6Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44

(2d Cir. 1991) ...........................................................16Lujan v. Defenders of Wildlife, 504 U.S. 555

(1992) .......................................................................20

Luther v. Borden, 48 U.S. (7 How.) 1 (1849) ................8Marbury v. Madison, 5 U.S. (1 Cranch) 137

(1803) .........................................................................4

Massachusetts v. EPA, 549 U.S. 497 (2007) ......... 12, 22McKay v. United States, 703 F.2d 464 (10th Cir.

1983) ........................................................................16

Mistretta v. United States, 488 U.S. 361 (1989) .... 5, 27Monaco v. Mississippi, 292 U.S. 313 (1934) ................6

Morrison v. Olson, 487 U.S. 654 (1988) .......................4Native Village of Kivalina v. ExxonMobil Corp.,

663 F. Supp. 2d 863 (N.D. Cal. 2009) .........15, 17, 22Nixon v. United States, 506 U.S. 224 (1993) ...............5North Carolina v. Tennessee Valley Authority,

No. 09-1623, 2010 WL 2891572 (4th Cir. July26, 2010) ..................................................................13

TABLE OF AUTHORITIES - ContinuedPage

O’Melveny & Myers v. Federal Deposit Insur-ance Corp., 512 U.S. 79 (1994) .................................7

Occidental of Umm al Qaywayn, Inc. v. ACertain Cargo of Petroleum, 577 F.2d 1196(5th Cir. 1978) .........................................................14

Public Interest Research Group v. PowellDuffryn Terminals Inc., 913 F.2d 64 (3d Cir.1990) ............................................................ 20, 21, 22

Schlesinger v. Reservists Cmte. to Stop the War,418 U.S. 208 (1974) ...........................................23, 24

Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) ............7Tel-Oren v. Libyan Arab Repub., 726 F.2d 774

(D.C. Cir. 1984) ........................................................16Texas Indep. Producers and Royalty Owners

Assoc., 410 F.3d 964 (7th Cir. 2005) .......................22U.S. Dept. of Commerce v. Montana, 503 U.S.

442 (1992) ..................................................................5Union Elec. Co. v. EPA, 515 F.2d 206 (8th Cir.

1975), aff’d, 427 U.S. 246 (1976) ........................... 13

United States v. Richardson, 418 U.S. 166(1974) .......................................................................23

Vieth v. Jubelirer, 541 U.S. 267 (2004) ............9, 10, 17Youngstown Sheet & Tube Co. v. Sawyer, 343

U.S. 579 (1952) ......................................................5, 7

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TABLE OF AUTHORITIES - ContinuedPage

UNITED STATES CONSTITUTION

U.S. Const., Art. I sec. 1 ...............................................7U.S. Const., Art. III ..................................10, 19, 20, 24

RULES

United States Supreme Court Rule 37.6 .....................1

OTHER AUTHORITIES

16 AM. Jun. 2D Constitutional Law, sec. 62-76(2009) .........................................................................5

Jesse H. Choper, The Political Question Doc-trine: Suggested Criteria, 54 DUKE L. J. 1457(2005) .......................................................................17

JESSE DUKMINIER, ET AL., PROPERTY (6th ed.Aspen Publishers 2006) ..........................................18

RICHARD H. FALLON, JR., ET AL., HART ~ WECH-SLER’S THE FEDERAL COURTS AND THE FEDERALSYSTEM (6th ed. 2009) ...............................................4

Introduction to RESTATEMENT (SECOND) OFTORTS, vO1. 4, at viii (1979) ................................17, 18

Richard J. Lazarus, Super Wicked Problemsand Climate Change: Restraining the Presentto Liberate the Future, 94 CORNELL a. REV.1153 (2009) ........................................................ 12, 21

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TABLE OF AUTHORITIES - ContinuedPage

Richard J. Lempert, et al., Capital Cycles andthe Timing of Climate Change Policy (Oct.2002), available at: http://www.pewclimate.org/docUploads/capital_cycles.pdf ..........................25

PETER READ, RESPONDING TO GLOBAL WARMING:THE TECHNOLOGY, ECONOMICS AND POLITICSOF SUSTAINABLE ENERGY (Zed Books 1994) .............12

Joseph A. Siegel, Collaborative Decision Mak-ing on Climate Change in the Federal Gov-ernment, 27 PACE ENVT’L L. REV. 257 (2009) ...........6

Michael Toman, et al., The Economics of"When" Flexibility in the Design of Green-house Gas Abatement Policies, 24 ANNUALREV. OF ENERGY AND THE ENVT. 431-460(1999) .......................................................................26

Laurence H. Tribe, Joshua D. Branson, andTristan L. Duncan, Wash. Legal Found., Crit-ical Legal Issues Series No. 169, Too Hot forCourts to Handle: Fuel Temperatures, GlobalWarming, and the Political Question Doctrine(Jan. 2010) ......................................... 3, 13, 24, 26, 27

INTEREST OF AMICUS CURIAE~

NATSO, Inc. ("NATSO") is a national trade asso-ciation representing the travel plaza and truckstopindustry. NATSO’s members run the gamut fromsmall mom-and-pop stores and family-run businessesto medium and larger sized corporations. NATSO,and its members, are active participants in the ongo-ing debate before the political branches regardinghow to address climate change.

Any judicially imposed emissions cap that mightissue in this case to allegedly remedy injuries flowingfrom a warming earth would directly impact NATSO’smembers by requiring them to change their businesspractices or, like the defendants, face the potential forfuture civil litigation. Additionally, any emissionsabatement order in this case would necessarily haveadverse implications for the supply of motor fuel,thereby creating negative economic consequences forNATSO’s members. Because of this case’s preceden-tial significance, it most likely will have direct andadverse impact on the businesses and livelihoods of

1 In accordance with Rule 37.6, arnicus curiae state that nocounsel for a party has authored this brief in whole or in part,and that no person or entity, other than the amicus curiae, itsmembers, or its counsel made a monetary contribution to thepreparation or submission of the brief. All parties consented tothe filing of this brief and their letters of consent have beenlodged with the Clerk of Court. NATSO provided the requirednotice of filing to all parties.

NATSO’s members. As a consequence, the Courtshould allow NATSO’s voice to be heard.

STATEMENT OF THE CASE

NATSO adopts Petitioner’s statement of the case.

SUMMARY OF THE ARGUMENT

The Petition for Writ of Certiorari should begranted for the following four reasons.

First, the Second Circuit’s decision violates a corepostulate of this Court’s political question doctrinejurisprudence - namely, that justiciability turns onthe judiciary’s competence to apply coherent legalprinciples to the specific dispute in front of it (its "lawapplication function"), rather than on the plaintiff’sability to couch a claim in the language of a tradi-tional cause of action ("semantic cataloguing"). Indoing so, the Second Circuit’s decision, in both itsreasoning and result, conflicts with relevant decisionsof this Court. The judicially administered common-law of nuisance is not a constitutionally permissiblemechanism through which to address global climatechange. When stripped of its common-law label, thislawsuit is exposed as a clear end run around thepolitical law-making process committed to Congressby the text and structure of the Constitution.

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Second, the Second Circuit decision, by contra-dicting both the methodology employed by severalcourts of appeals and the explicit holdings of twodistrict courts, compounds the doctrinal confusionsurrounding the political question doctrine. Thisdoctrinal incoherence cries out for this Court to stepin and supply clarity for principled adjudication.

Third, the circuits are split over whether merecontribution to a generalized environmental problem,without more, can generate standing.

Fourth, this is not a case in which mere misap-plication of an otherwise correct legal standard hasoccurred. Rather, the errors are so grave and so likelyto recur that immediate review to prevent significantirreparable harm is necessary. Not only will judicialaction in this field require costly and irreversibletechnological change on the part of defendants, butpermitting an ad hoc mishmash of common-lawregimes will frustrate congressional attempts todesign coherent and systematic market-based solu-tions which can remedy the problem. Laurence H.Tribe, Joshua D. Branson, and Tristan L. Duncan,Wash. Legal Found., Critical Legal Issues SeriesNo. 169, Too Hot for Courts to Handle: Fuel Tempera-tures, Global Warming, and the Political QuestionDoctrine 22 (Jan. 2010).

Thus, far from providing meaningful redress forthe environmental worldwide problem posed, judicialintervention risks making global warming worse."Frequently an issue of this sort will come before the

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Court clad, so to speak, in sheep’s clothing: the poten-tial of the asserted principle to effect importantchange in the equilibrium of power is not immediate-ly evident, and must be discerned by a careful andperceptive analysis. But this wolf comes as a wolf."Morrison v. Olson, 487 U.S. 654, 699 (1988) (Scalia, J.dissenting).

ARGUMENT

I. THE SECOND CIRCUIT DECISION VIO-LATES THE CORE POSTULATE OF THISCOURT’S POLITICAL QUESTION DOC-TRINE JURISPRUDENCE, WHICH RE-JECTS "SEMANTIC CATALOGUING"ANDCONFINES ARTICLE III COURTS TO ALAW APPLICATION, NOT LAW CREA-TION, FUNCTION.The political question doctrine originated in

Marbury v. Madison, where Chief Justice Marshallopined that "[q]uestions in their nature political ...can never be made in this court." 5 U.S. (1 Cranch)137, 170 (1803). This Court articulated the criteriafor identifying political questions in Baker v. Cart,369 U.S. 186, 216 (1962). Among them, and applicablehere, are "a textual]y demonstrable commitment to acoordinate political department;.., a lack of judicial-ly discoverable and manageable standards ... ; [and]the impossibility of deciding without an initial policydetermination of a kind clearly for nonjudicial discre-tion." Id. RICED H. FALLON, JR. ET AL., I-I_.ART &

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WECHSLER’S THE FEDERAL COURTS AND THE FEDERALSYSTEM 235 (6th ed. 2009) ("No single criterion seemsto control, and some appear to... have a... pruden-tial or functional feel to them.").

In all of its aspects, the political question doc-trine is "a function of the separation of powers." U.S.Dept. of Commerce v. Montana, 503 U.S. 442, 456(1992). Cf. Mistretta v. United States, 488 U.S. 361,381 (1989) (quoting Buckley v. Valeo, 424 U.S. 1, 122(1976) (discussing overarching separation of powersprinciples generally and explaining that their prima-ry purpose is to prevent "encroachment or aggran-dizement [by] one branch at the expense of theother[s]"); Youngstown Sheet & Tube Co. v. Sawyer,343 U.S. 579, 635 (1952) (Jackson, J., concurring)("Constitution diffuses power the better to secureliberty....").

With respect to the first Baker factor, the SecondCircuit overlooked that textual commitments neednot be express, but may be implied from the Constitu-tion’s structure and framework. See Nixon v. UnitedStates, 506 U.S. 224, 228-29 (1993) ("[T]he concept ofa textual commitment to a coordinate political de-partment is not completely separate from the conceptof a lack of judicially discoverable and manageablestandards for resolving it; the lack of judicially man-ageable standards may strengthen the conclusionthat there is a textually demonstrable commitment toa coordinate branch."); see also 16 AM. Jca. 2D Consti-tutional Law, sec. 62-76 (2009). Accordingly, theConstitution’s lack of a "climate change" or "carbon

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emissions" clause should not end the analysis. In-stead, the more relevant question is whether theConstitution implicitly commits resolution of system-ic, interdependent, national and international policy-oriented disputes such as climate change to Con-gress’s regulatory and lawmaking function. Solutionsto such inherently global issues are more appropriate-ly assigned to legislative processes that incorporatethe views and interests of the many stakeholders, andnot the judicial process, which excludes nonparties.See Joseph A. Siegel, Collaborative Decision Makingon Climate Change in the Federal Government, 27PACE ENVT’L L. REV. 257, 259 (2009).

"Behind the words of the constitutional provi-sions are postulates which limit and control." Monacov. Mississippi, 292 U.S. 313, 322 (1934). In this case,the controlling postulate marks functions that onlyCongress or the President could discharge competent-ly as committed, respectively, to Congress and thePresident. INS v. Chada, 462 U.S. 919, 951 (1983)("The Constitution sought to divide the delegatedpowers of the new Federal Government into threedefined categories, Legislative, Executive, and Judi-cial, to assure, as nearly as possible, that each branchof government would confine itself to its assignedresponsibility. The hydraulic pressure inherentwithin each of the separate Branches to exceed theouter limits of its power, even to accomplish desirableobjectives, must be resisted.").

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Responding to the challenges posed by globalwarming will require policy choices that are inher-ently legislative and thus inherently committed toCongress. The "Constitution is neither silent nor equiv-ocal about who shall make the laws .... " Youngs-town, 343 U.S. at 587.2 Article I vests lawmakingpower exclusively in Congress, not the federal courts.See U.S. Const., Art. I sec. 1 ("All legislative powersherein granted shall be vested in a Congress of theUnited States"); see generally O’Melveny & Myers v.Federal Deposit Insurance Corp., 512 U.S. 79, 89(1994) (creation of a new liability rule is "more appro-priately for those who write the laws, rather than forthose who interpret them."); Sosa v. Alvarez-Machain,542 U.S. 692, 727 (2004). In this case, plaintiffs askthe courts to legislate. An abatement order wouldembody a legislative judgment about what carbonemissions policy ought to be, derived from a cost-benefit analysis of costs to plaintiffs versus utility ofcontinued energy production at current levels. In thecontext of the unique, global, inherently systemicnature of climate change, balancing of competingconsiderations of costs and utility is not possible in

2 While Youngstown, which involved a presidential order tothe Secretary of Commerce to take possession of the nation’ssteel mills to continue steel production, is not a political questiondoctrine case, it is relevant to the separation of powers issueshere. As much as the presidential order in Youngstown, therequested judicial abatement order against the utilities tocurtail energy production here would usurp law-making powersthat the Constitution vests exclusively in Congress.

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any traditional common-law calculus. Indeed, suchsubstantive, noninterstitial, lawmaking in the guiseof the common-law unconstitutionally aggrandizesjudicial power beyond the Judiciary’s law-applicationfunction and unconstitutionally violates separation-of-power principles.

Certiorari Is Warranted Because TheSecond Circuit’s Attribution Of Deci-sive Significance To The Label At-tached To The Plaintiffs’ Cause OfAction, And Its Corresponding FailureTo Dissect The Application Of ThatCause Of Action To The Underlying Is-sue Of Climate Change, Conflicts WithThe Core Commands Of This Court’sRelevant Political Question DoctrineDecisions.

The Second Circuit erred by focusing on the label,and not the true nature, of the plaintiffs’ claims.Based on the claims’ "public nuisance" label, the courtviewed them as presumptively justiciable and con-cluded that the issues in the case were not textuallycommitted to the political branches but instead to thejudiciary. This analysis, however, would evisceratethe political question doctrine, as lawyers couldsimply plead around it. Rather, a court must look atthe issues underlying claims, not the labels placed onthem. Baker, 369 U.S. at 217; Luther v. Borden, 48U.S. (7 How.) 1, 7 (1849) (common-law trespass claim

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was a nonjusticiable political question because under-lying issues were for Congress to decide); Gilligan v.Morgan, 413 U.S. 1 (1973) (civil rights action underFourteenth Amendment was nonjusticiable politicalquestion because requested injunctive relief seekingjudicial creation and supervision of new standards forMilitia discipline was for Congress to decide); Vieth v.Jubelirer, 541 U.S. 267, 296-97 (2004) (equal protec-tion challenge was a political question due to lack ofjudicially manageable standards for determiningwhen a political gerrymander goes "too far").

In addition, a rule that invites litigants to escapethe thrust of the political question doctrine by noth-ing more than semantic manipulation constitutes atransparent resort to a form of circular reasoning thatalways leads to a finding of justiciability. This ismade clear by the Panel’s conclusion that, since theclaims presented by plaintiffs were common-lawnuisance claims, "judicially manageable standards"for resolving the climate change problems alleged byplaintiffs to be a source of their injuries were provid-ed by the common-law of nuisance. See Connecticut v.American Electric Power, 582 F.3d 309 (2d Cir. 2009)("AEP").

The implication of this circular reasoning is clear:As long as a claim is stated under the label of atraditional common-law cause of action, that cause ofaction will always provide judicially manageablestandards for addressing whatever problem thecomplaint asks the court to resolve, and the claim willalways be justiciable. The Panel’s reliance on this

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question-begging technique in itself warrants grant-ing certiorari, for nothing less is at stake than thevery survival of the political question doctrine and ofthe fundamental separation of powers principles itembodies.

Instead of evaluating the types of carbon-specificissues likely to emerge during the litigation, theCourt concluded that generalized judicial experiencewith respect to the plaintiffs’ cause of action automat-ically satisfied Baker’s second and third prongs. Indoing so, the Second Circuit departed from the basicteaching that the political-question doctrine governsthe judicial resolution of certain types of disputes, notthe entertainment of certain causes of action. ArticleIII, through the political question doctrine, limits"judicial action [to action that is] ... governed bystandard, by rule." ~eth, 541 U.S. at 278 (emphasisin original). The determination of whether a disputeis amenable to sufficiently principled resolution tocomply with the Article III conception of the "judicialpower" requires a "discriminating analysis of theparticular question posed" and in particular "thepossible consequences of judicial action." Baker, 369U.S. at 211-12. As such, the search for anonjusticiable political question must be guided by afact-intensive "discriminating inquiry," not "semanticcataloguing." Id. at 217.

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B. The Second Circuit’s Category RootError Stemmed From Its MistakenEquation Of Climate Change WithTraditional Air Pollution Cases When,In Fact, Climate Change Cases InvolveDifferences In Kind, Not Just Degree,From Ordinary Nuisance Cases.

The Second Circuit’s most fundamental analyti-cal error was it presumed that any reduction incarbon emissions "slows" global warming and therebyremedies plaintiffs’ alleged injuries at least to somedegree. This is not so. The court did acknowledge thatclimate change is caused by numerous sources ofgreenhouse gases, but then concluded that, merelybecause the "Plaintiffs’ injuries are part of a world-wide problem does not mean Defendants’ contributionto that problem cannot be addressed through princi-pled adjudication." AEP, 582 F.3d at 329. In takingthat step, the court made a fundamental categoryerror: it framed climate change as a traditionalpollution problem when in fact it is anything but.

In essence, the Panel assumed that climatechange is simply a bigger version of a classic airpollution problem and that the nuisance doctrine istherefore equipped to manage it. That assumptionis fatally flawed.3 Carbon dioxide is unlike any

~ None of the following arguments requires any additionaljudicial fact-finding inappropriate for the pleading stage of thelitigation. The "stock pollutant" description of carbon dioxidemerely clarifies what the plaintiffs have already alleged, as it is

(Continued on following page)

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traditional pollutant; it is a stock pollutant, meaningthat the injuries associated with climate change stemonly from the overall concentration of carbon dioxide,irrespective of source. See PETER READ, RESPONDINGTo GLOBAL WARMING: THE TECHNOLOGY, ECONOMICSAND POLITICS OF SUSTAINABLE ENERGY 153 (Zed Books1994). The relationship between greenhouse gasemissions and global warming "does not operate likethe kind of simple, short-term, more linear relation-ship between cause and effect that most people ...assume is at work when they contemplate pollution."Richard J. Lazarus, Super Wicked Problems andClimate Change: Restraining the Present to Liberatethe Future, 94 CORNELL L. REV. 1153, 1164 (2009).Because a linear cause and effect relationship isabsent here, the problem of remedying global climatechange is even less amenable to reasoned adjudica-tion than attempting to "balance" interests that "areincommensurate." In that context, Justice Scaliawrote "balancing" interests that "are incommensu-rate" is "more like judging whether a particular lineis longer than a particular rock is heavy." BendixAutolite Corp. v. Midwesco Enterprises, Inc., 486 U.S.888, 897 (1988) (Scalia, J. concurring in judgment).

To ask one court, armed only with the Restate-ment of Torts, to resolve those issues is to ask theimpossible. See Massachusetts v. EPA, 549 U.S. 497,533 (2007) (recognizing that this Court had "neither

the scientific theory upon which their allegations rely. SeeComplaint ~I~ 87-94, Connecticut v. Am. Elec. Power, 406F. Supp. 2d 265 (S.D.N.Y. 2005).

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the expertise nor the authority to evaluate [climatechange] policy judgments"); Union Elec. Co. v. EPA,515 F.2d 206, 219 (8th Cir. 1975), aft’d, 427 U.S. 246(1976) ("It is not our role to sit as a super-legislaturebalancing the necessity of compliance with the cleanair standards against competing economic and tech-nological considerations."); North Carolina v. Tennes-see Valley Authority, No. 09-1623, 2010 WL 2891572,at *3 (4th Cir. July 26, 2010) ("If courts across thenation were to use the vagaries of public nuisancedoctrine to overturn the carefully enacted rulesgoverning airborne emissions it would be increasinglydifficult for anyone to determine what standardsgovern. Energy policy cannot beget and the environ-ment cannot prosper, in this way.")

The above arguments are ones that courts,because of their lack of policy expertise and becauseof their constitutional inability to bind non-parties,are methodologically and institutionally incapable ofaddressing. Tribe, et al., supra, at 21.

II. BY CONTRADICTING THE METHODOLOGYEMPLOYED BY SEVERAL COURTS OFAPPEALS AND THE EXPLICIT HOLDINGSOF TWO DISTRICT COURTS, THE SECONDCIRCUIT COMPOUNDED THE DOCTRINALCONFUSION SURROUNDING THE POLIT-ICAL QUESTION DOCTRINE REQUIRINGTHIS COURT’S IMMEDIATE GUIDANCE.

Several courts of appeals have rejected the "se-mantic cataloguing" or "labeling" approach adopted by

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the Second Circuit and instead followed a methodolo-gy whereby the court looks beyond the familiar com-mon-law terminology and instead, tailors the fitbetween the alleged injury, wrongful conduct, andrequested relief to the proper governmental functionto determine justiciability. In doing so, courts must beon guard for insuperable problems of unmanageabil-ity that might "emerge" as the claim is tried. Occi-dental of Umm al Qaywayn, Inc. v. A Certain Cargo ofPetroleum, 577 F.2d 1196, 1202 (5th Cir. 1978). Evenif the complaint itself does not facially advance abaldly political question, several courts have heldcommon-law claims to be nonjusticiable when theapplication of seemingly traditional causes of actionrequires judicial resolution of underlying politicaldisputes. See Carmichael v. Kellogg, Brown & RootServ., Inc., 572 F.3d 1271 (11th Cir. 2009) (negli-gence); Corrie v. Caterpillar, Inc., 503 F.3d 974, 983n.8 (9th Cir. 2007) (wrongful death, public nuisance);El-Shifa Pharm. Indus v. United States, 607 F.3d 836(D.C. Cir. 2010) (defamation).

This concern with the content of a complaint -instead of its mere form - has led two district courtsto reach conclusions that conflict flatly with that ofthe Second Circuit. In California v. General MotorsCorp., the Northern District of California heldnonjusticiable a similar nuisance claim alleginginjury stemming from climate change. No. C06-05755, 2007 WL 2726871 (N.D. Cal. 2007). Becausethe claim "would require the Court to create a quo-tient or standard" assessing the harm and the benefitgenerated by fossil fuel consumption, the court held

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that the claim impermissibly asked it to engage in a"balancing of... competing interests ... to be madeby the political branches." Id. at *8. Two years later,another Northern District of California court directlyrepudiated the Second Circuit’s AEP decision, holdingthat the climate change nuisance claim before itwould force the court to venture into sophisticatedprogrammatic analysis of American energy policy, ananalysis that was beyond nuisance doctrine’s limits.See Native Village of Kivalina v. ExxonMobil Corp.,663 F. Supp. 2d 863 (N.D. Cal. 2009). These decisionsepitomize the type of "discriminating analysis" ofclimate change and its intersection with nuisanceprinciples that this Court’s holdings demand.

The Second Circuit’s misstep - and the directconflict between its decision and those of the U.S.District Court for the Northern District of California- is symptomatic of the broader doctrinal chaos inthis area. In reaching a conclusion similar, but notidentical, to the AEP court’s, a panel of the FifthCircuit, in a vacated opinion, recently argued thatBaker’s formulations are merely "open-textured,interpretive guides to aid federal courts in deciding"whether a question is nonjusticiable. Comer v. Mur-phy Oil, 585 F.3d 855, 872 (5th Cir. 2009), opinionvacated pending reh’g en banc, 598 F.3d 208, appealdismissed, 607 F.3d 1049 (5th Cir. 2010). It thenconcluded that a nuisance suit against carbon emit-ters was justiciable in large part because "[c]ommon-law tort claims are rarely thought to presentnonjusticiable political questions." Id. at 873.

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The placement of so much weight on the form ofthe cause of action alleged, however misguided, isunlikely to represent a singular aberration. On thecontrary, it seems a predictable consequence of thefact that this Court has provided only sketchy, "open-textured, interpretive guides" to the general processof applying the political question doctrine. In thisvein, the D.C. Circuit recently observed that thepolitical question doctrine has become "notorious forits imprecision," Harbury v. Hayden, 522 F.3d 413,418 (D.C. Cir. 2008), echoing Judge Bork’s earlierremark that the "murky and unsettled" contours ofthe doctrine have generated a "lack of consensusabout its meaning." Tel-Oren v. Libyan Arab Repub.,726 F.2d 774, 803 n.8 (D.C. Cir. 1984) (Bork, J.,concurring).

Nor was the AEP Panel alone in its myopic focuson the formulaic label attached to the plaintiffs’ causeof action. An earlier Second Circuit decision reasonedthat where a plaintiff presents an "ordinary tort suit,alleging that the defendants breached a duty of care,"the claim is justiciable because tort suits are "consti-tutionally committed ... [to] the Judiciary." Kling-hoffer v. S.N.C. Achille Lauro, 937 F.2d 44, 49 (2d Cir.1991). Various other courts have similarly centeredtheir inquiries on classifying the cause of action. SeeIn re African-American Slave Descendants Litig., 471F.3d 754, 758 (7th Cir. 2006) ("[T]he plaintiffs havebeen careful to cast the litigation as a quest forconventional legal relief."); McKay v. United States,703 F.2d 464, 470 (10th Cir. 1983) ("[T]he political

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question theory ... [does] not ordinarily preventindividual tort recoveries."). In other words, somecourts, like the AEP panel, allow the plaintiffs’ ownclassification of their legal theory to determine tauto-logically whether the claim is justiciable, while oth-ers, like the court in Kivalina, engage in a moresearching scrutiny. This Court’s review is essential torestore some order in political question doctrinecases, so that the doctrine can once again "constrain¯.. jurists from inserting their own ideological beliefsin ad hoc, unreasoned ways." Jesse H. Choper, ThePolitical Question Doctrine: Suggested Criteria, 54DUKE L. J. 1457, 1470 (2005).

Indeed, the Second Circuit’s reasoning begs thequestion which is at the heart of Baker’s third factor:When is a policy determination made by a courtproperly within the judicial function, and when does apolicy determination cross the line and impinge onthe legislative function? To suggest that the dividingline can be ascertained merely by reference to theaxiom that "law pronounced by the courts must beprincipled, rational, and based upon reasoned distinc-tions," Vieth, 541 U.S. at 278, does not fully answerthe question. In concluding that the RESTATEMENT(SECOND) OF TORTS supplies judicially manageablestandards and does not require federal courts tomake a policy decision of a nonjudicial nature, theSecond Circuit decision suggests that any nuisancecase is justiciable. But the Restatement’s introductionacknowledges that courts "regard the law of torts as adynamic set of norms, inviting adaptation as social

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conditions and prevailing values change, within thelimits of the judicial function." Introduction to RE-STATEMENT (SECOND) OF TORTS, vo1. 4, at viii (1979)(emphasis added).

Thus, the Second Circuit either overlooked orfailed to understand the inherent restrictions that thecommon-law of nuisance, as reflected in the Restate-ment, has always incorporated into the common law-making power. The judgments of national and inter-national policy that plaintiffs ask federal courts tomake in this case lie far beyond the scope of properlyjudicial common-law decision making. The Restate-ment implicitly recognizes as much when it providesthat the courts should root their judgments of"unrea-sonableness" in nuisance cases in "community stand-ards," id. § 828 cmt. b, because, apart fromcommunity standards, "there is often no uniformlyacceptable scale or standard of social values to whichcourts can refer." Id. In this case, for which it is clearthat no "community standards" exist, a court couldnot proceed without making uncabined policy judg-ments that even the Restatement recognizes courtsshould eschew as "outside the limits of the judicialfunction." See generally JESSE DUKMINIER, ET AL.,PROPERTY 665 (6th ed. Aspen Publishers 2006)("[N]uisance litigation is ill-suited to other thansmall-scale, incidental, localized, scientifically un-complicated pollution problems.").

The Restatement’s own self-limiting terms there-fore suggest that climate change disputes are non-justiciable both because of lack of judicially

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manageable standards and because of the need for apolicy decision of a non-judicial nature.

III. THE CIRCUITS ARE SPLIT OVERWHETHER MERE CONTRIBUTION TO AGENERALIZED ENVIRONMENTAL PROB-LEM, WITHOUT MORE, CAN GENERATESTANDING.

A conflict now exists between the Second CircuitAEP decision and other circuits with respect to thefollowing important federal question: whether anindividual emitter’s mere contribution to a general-ized global environmental phenomenon is sufficient tosatisfy Article III standing, where:

(1) the plaintiff has no meaningful connection tothe emitter’s "zone of discharge," and

(2) no statutory permit exists from which cau-sation can be presumed.

In addition, the Second Circuit decision conflictswith this Court’s relevant standing decisions that findthat Article III standing is lacking when:

(1) the relief sought does not involve assertionof procedural rights pertaining to the regulation ofthe discharge, and

(2) an essential dimension of specificity withrespect to both the plaintiffs’ alleged injuries and thedefendants’ alleged wrongful conduct is absent.

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A. The Second Circuit Split From TheMajority Approach, Which Finds NoArticle III Standing Under The "Con-tribution Test" Unless The PlaintiffCan Identify A Geographically Dis-crete "Zone Of Discharge" In WhichShe Suffers Injury.

It is axiomatic that there is no standing unlessthe plaintiff demonstrates a "causal connectionbetween the injury and the conduct complained of"such that her injury is "fairly traceable to the actionsof the defendant." Bennett v. Spear, 520 U.S. 154, 162(1997) (citation and internal quotation marks omit-ted); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560n.1 (1992).

The Second Circuit incorrectly concluded that thestanding doctrine’s causation prong was satisfiedbecause plaintiffs alleged that the defendants’ emis-sions "contribute to global warming." AEP, 582 at347. In so doing, it purported to adopt the ThirdCircuit’s test for evaluating standing in Clean WaterAct cases, id. at 346-47, set forth in Public InterestResearch Group v. Powell Duffryn Terminals Inc., 913F.2d 64, 72 (3d Cir. 1990), which requires proof thatthe defendant: "(1) discharged some pollutant inconcentrations greater than allowed by its permit (2)into a waterway in which the plaintiffs have aninterest that is or may be adversely affected by thepollutant and that (3) this pollutant causes or con-tributes to the kinds of injuries alleged by the plain-tiffs." However, the Second Circuit abandoned the

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"statutory permit" and "zone of discharge" require-ments.

Unlike the effluents regulated under the CleanWater Act or the traditional aerial pollutants regulat-ed under the Clean Air Act, according to plaintiffs’own pleadings, carbon gas does not flow to a demar-cated spatial region and cause environmental harm tothat region. Instead, the link between particle emis-sion and climate change is both spatially and tempo-rally attenuated; greenhouse gas emissions causeharm only far into the future and in scattered geo-graphic areas wholly unrelated to the location ofemissions. See Lazarus, supra, at 1176-77. As such,there is no meaningful zone of discharge for carbonemissions, since the effects of those emissions areboth cumulative and distributed globally, irrespectiveof their geographic source.

As the Fourth Circuit emphasized when applyingthe Powell Duffryn test, the Constitution demandsthat "some distinction.., be made between plaintiffswho lie within the discharge zone of a polluter andthose who are so far downstream that their injuriescannot fairly be traced to that defendant." Friends ofthe Earth, Inc. v. Gaston Copper Recycling Corp., 204F.3d 149, 162 (4th Cir. 2000). The Fifth and SeventhCircuits have similarly adopted Gaston Copper’sreasoning, holding that plaintiffs must allege injuryarising out of their use of some spatially limiteddischarge zone. See Friends of the Earth, Inc. v.Crown Cent. Petroleum Corp., 95 F.3d 358, 360-61(5th Cir. 1996) (finding an eighteen-mile span of

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water "too large to infer causation"); Texas Indep.Producers and Royalty Owners Assoc., 410 F.3d 964,973 (7th Cir. 2005).

The Powell Duffryn "Zone of Discharge" test is insquare conflict with the Second Circuit’s unrestrainedmisapplication of Powell Duffryn. Cf. Kivalina, 663F. Supp. 2d at 878-80 (comparing and contrastingspatially limited approaches to causation with literalapplications of Powell Duffryn). Indeed, the permis-siveness of the Second Circuit’s "contribution" formu-lation has no meaningful limits and enables a state tobecome a "roving environmental ombudsman seekingto right environmental wrongs wherever [it] mightfind them." Gaston Copper, 204 F.3d at 157. In find-ing that the plaintiffs have standing under thislimitless contribution test, the Second Circuit distort-ed the Third Circuit’s approach and split with amajority of circuits.

In addition, as Petitioners cogently argued andthis amicus will not duplicate, the Second Circuit alsosplit from the majority approach when it ignored thefirst prong of the Powell Duffryn test, which requiresproof of a defendant’s emission discharge beyond astatutory permit. Petitioners’ Petition for a Writ ofCertiorari at 18-20. Furthermore, the Second Circuitdecision conflicts with the standing analysis in Mas-sachusetts v. EPA because this case does not involvea procedural right pertaining to the regulation of thedischarge. Id. at 15-18.

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B. Plaintiffs’ Claims Should Be Barred As"Generalized Grievances."

Of paramount importance to the standing inquiryis the requirement that claims present "somethingmore than generalized grievances." United States v.Richardson, 418 U.S. 166, 180 (1974) (internal quota-tion omitted). In doing so, the plaintiff must articu-late a chain of causation from challenged conduct toinjury that possesses a constitutionally "essentialdimension of specificity." Schlesinger v. ReservistsCmte. to Stop the War, 418 U.S. 208, 221 (1974). Butthe plaintiffs’ claim here possesses no specificity; thenamed defendants are indistinguishable, in theirrelationship to the plaintiffs’ alleged injury, from anyother greenhouse gas emitters.

The Second Circuit’s test, shorn of any limitingspatial principle, thus runs afoul of Richardson’sspecificity requirement. Granted, both Richardsonand Reservists focused on the problem of undifferen-tiated plaintiffs - in both cases taxpayers - but theproblem is no less acute when defendants are target-ed not for any particular injury wrought on the plain-tiffs but instead on their generic contribution to aglobal problem.

Such "potential for abuse of the judicial process"cannot be squared with this Court’s standing juris-prudence. Reservists, 418 U.S. at 222. Under theSecond Circuit’s holding, where any plaintiff may sueany contributing defendant for systemic problems likeclimate change, courts would lose an important tool

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with which to keep generalized political claims - likea charge that one company’s outsourcing of Americanjobs had disturbed the overall American labor marketand thus "contributed to" the recession felt by aplaintiff- out of courts. Tribe, et al., supra, at 16-17.("adjudication of such abstract and undifferentiatedclaims ’opens the Judiciary to [the] charge of provid-ing ’government by injunction’, [Reservists at 222].And government by injunction is neither accountableto majority will nor a product of the ’consent of thegoverned’ ").

IV. THESE IMPORTANT ARTICLE IIIJUSTICIABILITY QUESTIONS HAVE NOTBEEN, BUT SHOULD BE, SETTLED BYTHIS COURT BECAUSE PERMITTINGCOMMON LAW NUISANCE DOCTRINE,WHICH IS FUNDAMENTALLY ILL-SUITEDTO GRAPPLE WITH THE NATIONAL ANDINTERNATIONAL POLICY COMPLEXI-TIES OF CLIMATE CHANGE, RISKSCREATING SERIOUS AND IRREVERSI-BLE HARM.Although only the Second Circuit among the

courts of appeals to date has decided the precise issueat stake - the justiciability of common-law nuisanceclaims targeting greenhouse gas emitters - the ur-gency and magnitude of the issues involved warrantimmediate review by this Court rather than delay toawait the development of an intercircuit conflict onthe precise question at hand. Specifically, were this

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Court to deny the writ in this case, and await thegermination of a persistent circuit split on the precisequestion presented, it would precipitate two destruc-tive consequences: it would (1) impose unrecoverabletechnological and economic costs on the Americanenergy industry; and (2) inhibit Congress’s ability toeffectively and comprehensively craft a climate policy.

Because of the sensitivity and complexity ofenergy systems, mistakes in the institutional designof carbon abatement schemes are extraordinarilycostly and not readily reversible. As one report con-cluded, what "makes climate change such a difficultpolicy problem is that decisions made today can havesignificant, uncertain, and difficult to reverse conse-quences extending many years into the future."Richard J. Lempert, et al., Capital Cycles and theTiming of Climate Change Policy (Oct. 2002), availableat: http://www.pewclimate.org/docUploads/capital_cycles.pdf.

It is no response that Congress could simplyoverrule or preempt the operation of common-lawremedies if and when it chooses to establish a com-prehensive climate change policy. See AEP, 582 F.3dat 374-75. Neither is it a response that this Courtcould choose to wait for more courts of appeals toweigh in on the issue before granting certiorari. Bothresponses presume carbon reductions can be con-trolled by a simple on/off switch, and companiescan easily comply with an injunction in the short-

term and smoothly integrate into a legislatively cre-ated emissions trading regime later. But emissions

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reductions are not so simple; they necessarily involvethe retirement of expensive capital stock and oftenrequire vast and expensive technological overhaulswithin the energy companies. See Michael Toman, etal., The Economics of "When" Flexibility in the Designof Greenhouse Gas Abatement Policies, 24 ANNUALREV. OF ENERGY AND THE ENVT. 431-460 (1999) (warn-ing of the dangers of "haste further lead[ing] to wrongchoice of technology"). Once companies commit tooverhauling their technological infrastructure inorder to achieve compliance with an injunction, thechanges they make are likely to be extremely difficultand costly to reverse. Not only does this threatenexcessive and irretrievable economic costs, but it runsthe risk of "locking in" inferior technology as compa-nies rush to innovate quickly enough to comply withshort-term reduction requirements. Tribe, et al.,supra, at 18. This Court should not force energyproducers to wait, watch, and pray while the variouscircuits concoct their common-law "solutions" to theharms of climate change.

CONCLUSION

To rule for the plaintiffs on their own nuisancetheory, the court would have to strike a balancebetween costs and benefits so far-reaching and globalin character, and so ungrounded in any preexistingbody of binding rules or principles, that it would bemaking rather than applying law. Moreover, in orderto provide meaningful relief, given the worldwidecharacter of the problems involved, the court wouldneed to launch a regime of nationwide and probably

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international regulation, usurping the role of bothpolitical branches. Were the court to attempt toresolve the complex and inextricable policy issuesthat it would necessarily confront while addressingplaintiffs’ claims, it would be acting as "a sort ofjunior-varsity Congress." Mistretta, 488 U.S. at 427(Scalia, J. dissenting). "One can believe strongly inaccess to courts for the protection of judicially en-forceable rights and the preservation of legal bounda-ries ... while still deploring the perversion of thejudicial process to meddle in matters of policy for-mation far removed from those judicially manageablerealms. Indeed, the two concerns are mutually rein-forcing rather than contradictory, for courts squanderthe social and cultural capital they need in order todo what may be politically unpopular in preservingrights and protecting boundaries when they yield tothe temptation to treat lawsuits as ubiquitouslyuseful devices for making the world a better place."Tribe, et al., supra, at 2.

Respectfully submitted,TRISTAN L. DUNCAN*WILLIAM F. NORTHRIPSARAH E. LYNN BALTZELLSHOOK, HARDY ~ BACON L.L.P.

2555 Grand BoulevardKansas City, Missouri 64108tlduncan@shb.com(816) 474-6550Attorneys for Amicus Curiae*Counsel of Record

September 2nd, 2010