August 5, 2010

Global warming nuisance suit in the Supreme Court?

By Global warming nuisance suit in the Supreme Court?

Author:  Damien M. Schiff

This week, a collection of energy companies requested the Supreme Court to review the Second Circuit's decision in Connecticut v. American Electric Power Co.  The plaintiffs are a collection of eight states, the City of New York, and three private land trusts, who have brought public nuisance claims against the half-dozen largest greenhouse gas emitters in the country. The gist of all the claims is that the energy companies’ greenhouse gas emissions contribute to global warming and therefore have produced and will continue to produce a host of climate-change-related harms to the states’ sovereign territory and the land trusts’ properties.

The suit is very similar to the claims at issue in Native Village of Kivalina and Comer, in which PLF has participated as amicus.

In Connecticut, the district court ruled against the plaintiffs on political question grounds, but the Second Circuit panel reversed, concluding that the plaintiffs had standing to raise their nuisance claims, and that the political question doctrine did not bar the suit. The Second Circuit reasoned that the political question doctrine did not bar these suits because federal courts have familiarity with public nuisance actions generally, and because this case is purportedly no different from any other run-of-mill public nuisance action.

As for standing, the Second Circuit, analogizing to Clean Water Act cases, reasoned that the plaintiffs’ injuries are fairly traceable to the energy companies’ emissions on the grounds of a "contribution" rationale.  The court also found that the plaintiffs’ injuries would likely be redressed, even though the plaintiffs do not seek damages; the court reasoned that an injunction capping and then reducing the companies’ emissions would remedy the plaintiffs’ injuries.

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