James I. Glasser
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The Top Nine of 2009

March 1, 2010 Published Work
Connecticut Lawyer


The Second Circuit decided many significant cases in 2009. This article focuses only on those cases from, or significantly affecting, the District of Connecticut. Beyond geography, our selection criteria were completely subjective, and the nine cases discussed here (five civil and four criminal) reflect only our opinion of the decisions that might be most interesting to Connecticut practitioners. With that caveat, we begin with the five civil decisions.

Five Civil Cases

On September 21, 2009, the court issued a long-awaited decision in Connecticut v. American Electric Power Co.,1 on the viability of litigating tort claims based on global warming. Plaintiffs – eight states (including Connecticut), one municipality (New York City), and three land trusts – sued six electric power corporations, asserting that defendants' contributions to global warming created a public nuisance. Plaintiffs sought an order forcing defendants to cap and then reduce their carbon dioxide emissions. The District Court for the Southern District of New York dismissed the complaints on political question grounds, holding that the complain "touched on so many areas of national and international policy" and "revealed the transcendently legislative nature of this litigation."2 In a lengthly decision by Judge Peter W. Hall, the Second Circuit reversed.

A significant victory for plaintiffs in environmental cases, the Second Circuit first held that the nuisance claims were not barred by the political question doctrine. Applying the seminar test for justicability from Baker v. Carr,3 the court found none of the factors from that case were satisfied. In so concluding, the court rejected defendants' conclusory statements regarding the broad sweep of plaintiffs' claims, and emphasized the fact that "federal courts have successfully adjudicated complex common law public nuisance cases for over a century."4 According to the court, although there are many national and international political efforts to curtail global warming, "not every case with political overtones is non-justiciable."5 Indeed, the court held that "[g]iven the checks and balances among the three branches of our government, the judiciary can no more usurp executive and legislative prerogatives than it can decline to decide matters within its jurisdiction simply because such matters may have political ramifications."6 The Second Circuit then addressed several questions that the district court had not resolved, concluding that the plaintiffs all had standing to bring their claims and that the complaints stated a valid claim under the federal common law of public nuisance that had not been displaced by federal statutes (such as the Clean Air Act).7 Shortly after the Second Circuit's decision in American Electric Power, courts in the Fifth and the Ninth Circuit weighed in on similar lawsuits,8 making it likely that the Supreme Court will soon address these tort-based global warming claims.

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