By Brian R. Paget
Despite the enactment in recent decades of numerous federal and state statutes that authorize lawsuits to address environmental pollution, one of the most potent weapons in the arsenal to address such pollution remains the centuries-old common law of public nuisance. Nuisance law has shown considerable flexibility in being able to expand to encompass a broad range of new and different conditions as “public nuisances,” basically, conditions that unreasonably interfere with the public’s right to use and comfortably enjoy property, including conditions of environmental contamination.
And yet, recent efforts to extend nuisance law to cover global warming as a public nuisance have been largely unsuccessful. States, cities and public interest groups have brought lawsuits against some of the country’s largest utility companies, alleging that their carbon dioxide emissions cause or contribute to global warming, that such warming constitutes a “public nuisance,” and that the courts should enjoin those utilities to reduce their emissions. Thus far, however, every federal district court that has considered such claims has dismissed them because, in the courts’ opinion, they raise non-justiciable political questions.
Connecticut v. American Electric Power is typical. That case was filed in New York federal court in 2004 by eight states against several coal-fired electricity plants and was later consolidated with similar cases filed by public interest groups. The plaintiffs sought to limit the greenhouse gas emissions from those plants on the ground that such emissions constitute a public nuisance. District Judge Loretta Preska, however, dismissed the lawsuit, finding that it would require “identification and balancing of economic, environmental, foreign policy, and national security interests” of a “transcendently legislative nature” and thus that it presented non-justiciable political questions.The appellate court disagreed. The U.S. Court of Appeals for the Second Circuit held that the plaintiffs’ public nuisance claims do not present non-justiciable political questions, saying:
“Nowhere in their complaints do plaintiffs ask the court to fashion a comprehensive and far-reaching solution to global climate change, a task that arguably falls within the purview of the political branches. Instead, they seek to limit emissions from six domestic coal-fired electricity plants on the ground that such emissions constitute a public nuisance that they allege has caused, is causing and will continue to cause them injury.”
The Second Circuit Court of Appeals thus joined the Fifth Circuit Court of Appeals in the case of Comer v. Murphy Oil as the only two federal appellate courts that have allowed such suits to go forward. In essence, the judges who would resolve such cases do not believe there are judicially-manageable standards to reach principled and rational decisions concerning greenhouse gas emissions and global warming, while two appellate courts are saying, without much explanation, that such claims are judicially-manageable.
Federal district judges in other similar cases remain unconvinced. The District Judge in Native Village of Kivalina v. ExxonMobil, for instance, directly responded to the Second Circuit Court of Appeals’ ruling in American Electric Power (“AEP”) by saying:
“Despite the admitted and significant differences between a nuisance claims based on water or air pollution and one, such as the present, based on global warming, neither Plaintiffs nor AEP offers any guidance as to precisely what judicially discoverable and manageable standards are to be employed in resolving the claims at issue. Although federal courts are undoubtedly well suited to resolve new and complex issues and cases, the Court is not persuaded that this is such a case. Plaintiffs’ global warming nuisance claim seeks to impose liability and damages on a scale unlike any prior environmental pollution case cited by Plaintiffs. Those cases do not provide guidance that would enable the Court to reach a resolution of this case in any ‘reasoned’ manner.”
Now, it looks like the conflict between the district courts and the circuit courts of appeal may be resolved by the U.S. Supreme Court. On December 6, 2010, the Supreme Court accepted certiorari in American Electric Power v. Connecticut. Although the case could ultimately be decided on other grounds, if the Supreme Court does resolve the global-warming-as-public-nuisance issue, it will have an enormous impact on the law of public nuisance, either opening the floodgates to climate change litigation or slamming those gates shut.
Look for further articles from Paladin Law Group® LLP on American Electric Power as it moves toward a final decision by the Supreme Court.