In a  139-page ruling (pdf) released today, the Second Circuit ruled broadly in favor of eight states, the City of New York and several environmental organizations that sued six major power companies on the grounds that their greenhouse gas emissions constituted a public nuisance.  The District Court had dismissed the litigation, finding that the suit amounted to an non-justiciable political question.  The Second Circuit reversed and remanded, with this concise summary:

We hold that the district court erred in dismissing the complaints on political question grounds; that all of Plaintiffs have standing; that the federal common law of nuisance governs their claims; that Plaintiffs have stated claims under the federal common law of nuisance; that their claims are not displaced; and that TVA’s alternate grounds for dismissal are without merit. We therefore vacate the judgment of the district court and remand for further proceedings.

We here at Warming Law will be dissecting this ruling in  more detail over the coming days, but a couple of immediate reactions come to mind.  First, this opinion is pretty stunning, coming as it does from two Bush appointees to the Second Circuit, both in terms of the power of its recognition that global warming is a crisis and in its insistence that courts can play a role, through the use of nuisance law, in addressing the crisis.  Following on the heels of the Supreme Court’s ruling in Mass v. EPA and coming at a time when EPA is moving steadily forward in using its Clean Air Act regulatory authority to reduce greenhouse gas emissions, it is a powerful reminder to politicians in Washington that the train has left the station in terms of efforts to address global warming, and if Congress wants to lead this effort, and make sure we have a comprehensive and market-based solution, it better act soon.

By the same token, however, the states and environmental organizations that are correctly celebrating today’s ruling should also recognize that the best possible outcome here would be action by Congress and EPA that effectively “displaces” federal nuisance suits (starting on page 102, the court rejects industry’s argument that the Clean Air Act already displaces nuisance suit, but leaves open the possibility that future action by Congress or EPA could have this effect).  This is the best outcome for two reasons: (1) we do need a more comprehensive solution than lawsuits will ever be able to bring, and (2) while the ruling today appears powerfully supported, there is no guarantee that the Supreme Court, which ruled against the environmental community in all five cases it heard last term, will agree — if and when this case gets that far.

But for now, we’ll continue to savor the opinion and we offer a huge congratulations to the states, city and groups — and their lawyers — who had the vision and courage to bring a suit that faced pretty long odds at the outset.  Today’s ruling should end up being an important step forward toward the ultimate goal of a comprehensive solution to the global warming crisis.