In Connecticut v. American Power, 2009 WL 2996729 (2nd Cir. Sept. 21, 2009), the United States Court of Appeals for the Second Circuit held that a claim filed by eight states, one city and three private land trusts could proceed on the theory that greenhouse gases emitted by five power companies constitute a public nuisance because the emissions contribute to global warming, which in turn poses a past and ongoing threat to persons and property.  The court’s lengthy decision rejected the defendants’ attempts to avoid suit prior to discovery based upon the following key defenses: 

Political Question:  The court held that while this may be a case with political overtones, it does not present a non-justiciable political question.  That is, it does not involve an issue that was constitutionally committed to another branch of government; does not present matters that cannot be resolved through the application of federal common law; and does not require the court to make a decision that will conflict with or frustrate pronouncements made by Congress or the President. 

Standing:  The court held that all plaintiffs could sue in their proprietary capacity as property owners.  In addition, the states could sue parens patriae because they are more than nominal parties and have unique interests in safeguarding the health and well-being of their citizens.  Plaintiffs adequately plead the existence of current and future injuries by making reference to specific environmental changes (i.e. reduced mountain snow pack, coastal erosion) that are caused or contributed to by greenhouse gas emissions, result in damages (i.e. diminished property values, water shortages), and may be reduced or slowed by the relief sought (a cap on greenhouse gas emissions). 

Failure to State a Claim:  The court held that the plaintiffs successfully plead a claim for public nuisance under federal common law by setting forth, in a manner consistent with the Restatement (Second) of Torts, an unreasonable interference with public rights that is ongoing, likely to have a long-lasting effect, and is apparent to the defendants.  The court also held that the land trusts had the right to sue for public nuisance under federal common law because the magnitude of their property interests makes their damages different from those suffered by the general public. 

Displacement:  The court held that plaintiffs’ federal public nuisance claim has not been displaced by federal statutory law.  It rejected the defendants’ argument that the Clean Air Act and five other statutes prove that Congress has legislated comprehensively on the subject because the Clean Air Act does not regulate greenhouse gas emissions at present and the other statutes primarily require the study – but not the regulation – of greenhouse gas emissions.  And, if the EPA does issue final regulations under the Clean Air Act, they will only concern mobile emission sources (i.e. automobiles and light trucks). 

The decision in Connecticut is remarkable because it was the first to permit a climate change public nuisance claim to go forward.  Previously, every court that had heard such a case – including the lower court in Connecticut – dismissed the complaint prior to discovery.  This decision resolved the primary basis for those dismissals (the political question doctrine) as well as several others that appeared to be safe havens for defendants.  In doing so, it reminded defense counsel that the level of specificity required to maintain a claim is much lower at the pleadings stage, clarified federal public nuisance law in the context of pollution cases, applied recent legal and legislative developments to the climate change paradigm (i.e. Massachusetts v. EPA, 127 S. Ct. 1438 (2007)), and provided plaintiffs with guidance on how to frame their claims.  The overall effect was to make climate change public nuisance cases more viable (e.g. Comer v. Murphy Oil USA, Inc., No. 1:05-CV-00436LG (S.D. Miss. Aug. 30, 2007); and Native Village of Kivalina v. ExxonMobile Corp., Civ. No. 08-2095 (N.D. Cal.)).


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11/12/2009 8:26:29 AM #

Public nuisance – the sort of law originally intended to look after such public rights
as protecting against noxious odors – is becoming increasingly contorted and used
in product liability cases to circumvent identifying the manufacturer of the product
at issue.  First successfully applied against tobacco manufactures, plaintiffs then
began asserting the doctrine in cases involving manufacturers of handguns and lead paint, and are now using it in global warming cases.   The migration of public nuisance into environmental claims poses additional challenges for manufacturers. With traditional public nuisance cases, the scope of damages could be pinpointed to a specific location or cause, but in global warming claims, there are no boundaries, borders or countries limiting either sources or harms.  The recent decisions should concern all manufacturers because while theses suits affect only specific industries, as currently defined the doctrine could apply to virtually all companies that emit greenhouse gases, which includes most of the manufacturing universe.

Cynthia Arends

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