What have the courts figured out that Congress hasn’t yet gotten its arms around?
In a potentially far reaching decision  by the United States Court of Appeals for the Second Circuit, the federal courts have once again stepped into the breach and ruled that states and private landowners can sue the five largest electric utilities for climate-related damages they contend were caused by the utilities’ carbon dioxide pollution (Connecticut v. American Electric Power Corp. et al. 2nd Circuit 2009). The appeals court overturned a district court opinion  that dismissed the case on the basis that it presented a “political question” that should be decided by another branch of government (Congress or the Executive Branch). The Appeals Court held that until Congressional or regulatory action occurred, common law protections against damage from greenhouse gas pollution are a legitimate basis for a court suit. The case was sent back to the District Court for further proceedings.
Together with the landmark 2007 Supreme Court decision (Mass. v EPA ), that has set EPA down the path of regulating greenhouse gas emissions, these court cases underscore a growing recognition by federal courts that the threat of greenhouse gas emissions represent a genuine threat and warrant legal review.
From a practical standpoint, this case cranks up the pressure on both Congress and EPA to act. Case-by case litigation would be disruptive, expensive and problematic given the scope of the challenges we face. The Court’s decision recognizes that these common law public nuisance cases may be preempted by Congressional or executive branch action. It should be increasingly clear to all that the best way forward would be for Congress to pass comprehensive climate legislation.
For more information, please see Judicial Analysis: State of Connecticut v. American Electric Power et al. (2009) 
Steve Seidel is Vice President, Policy Analysis