Seven states and the City of New York filed suit in July 2004 against the five electrical utility companies alleged to be the country’s largest emitters of carbon dioxide. In Connecticut v. American Electric Power, Inc., the plaintiffs alleged that the power plants’ carbon emissions cause a public nuisance by contributing to climate change.

Plaintiffs argue that “Defendants’ emissions of carbon dioxide, by contributing to global warming, constitute a substantial and unreasonable interference with public rights in the plaintiffs’ jurisdictions, including, inter alia, the right to public comfort and safety, the right to protection of vital natural resources and public property, and the right to use, enjoy, and preserve the aesthetic and ecological values of the natural world.” As relief, the plaintiffs sought an order capping and eventually reducing the emissions generated by defendants’ plants.

The U.S. District Court for the Southern District of New York dismissed the complaint in September 2005, ruling that plaintiffs’ claims were “political questions” over which the court had no jurisdiction. The court found that “[t]he scope and magnitude of the relief Plaintiffs seek reveals the transcendently legislative nature of this litigation. Plaintiffs ask this Court to cap carbon dioxide emissions and mandate annual reductions of an as-yet-unspecified percentage. Such relief would, at a minimum, require this Court to:

1. determine the appropriate level at which to cap the carbon dioxide emissions of these Defendants;
2. determine the appropriate percentage reduction to impose upon Defendants;
   
3. create a schedule to implement those reductions;
   
4. determine and balance the implications of such relief on the United States’ ongoing negotiations with other nations concerning global climate change;
   
5. assess and measure available alternative energy resources; and
   
6. determine and balance the implications of such relief on the United States’ energy sufficiency and thus its national security–all without an ‘initial policy determination’ having been made by the elected branches.”

The plaintiffs appealed the ruling to the Second Circuit, and oral argument occurred in June 2006. In April 2007, the court asked for supplemental briefing on the impact of the Supreme Court’s ruling in Massachusetts v. EPA. No decision has been issued.

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