The Court of Appeals for the Second Circuit ruled today that “public nuisance” law can be used to sue power companies based upon injuries from global warming. Eight states of the US, New York City, and three nonprofit (NGO) “land trusts” that seek to preserve environmentally sensitive land all sued power companies that own and operate fossil fuel (coal, etc.) power plants in 20 states of the US.
What follows is a summary of the holdings prepared by Professor John Bonine and reprinted here with his permission:
(1) The Court decided that this dispute about harm from global warming emissions presents legal issues that can be decided by a court, rather than merely political questions that are exclusively the area for legislatures or the President.
(2) One important issue was “standing to sue.” The Court decided that because the NGOs own property interests that can be harmed by weather events as a result of global warming, they clearly have standing to sue. (In addition, the states have standing to sue private power companies because the states can represent the interest of their citizens.)
(3) The Court decided that the standing of the NGO land trusts can be based on future injury because injuries are “already in process as a result of the ongoing emissions by defendants that contribute to increasing temperatures.”
(4) The Court decided that it was proper to bring an injunctive relief action based on the common law of “public nuisance.” This legal doctrine was imported from England, the Court pointed out. A public nuisance is “an unreasonable interference with a right common to the general public.”
(5) The Court decided that some entities that are “non-state” (private parties) have the right to file lawsuits against a public nuisance—not only state governments. The Second Circuit had not previously decided this issue. It cited cases taking the same position on the issue from the Seventh Circuit (in the Midwest of the US) and the Third Circuit (mid-Atlantic).
(6) The Court decided that the NGO land trusts were among the entities that could file this particular public nuisance case. The law requires that only private parties (including NGOs) who are specially injured—in a manner different from the general public—can file public nuisance cases. Not every private person could bring a public nuisance case. Not even every private landowner could do so. But these particular land trusts can because they own ecologically sensitive land, which they have invited the public to visit and enjoy, and their charter, purpose, and mission is to preserve land for public enjoyment.
(7) The Court decided that the passage of legislation by the US Congress did not eliminate the federal common law of public nuisance when it adopted the Clean Air Act. This issue is crucial. It is also an issue that could eventually bring an end to the importance of this case for greenhouse gas lawsuits. The Court stated that the Clean Air Act has not yet displaced (eliminated) the federal common law of public nuisance for greenhouse gas emissions cases. That is because the US Environmental Protection Agency has not (yet) ruled that greenhouse gases are a pollutant—and even if it does so, it has not yet even started the process of doing so for greenhouse gas emissions from stationary sources like power plants. Also, Congress could act separately.
The case may go to the US Supreme Court and there is a chance that it could be reversed there. Or it may not. Also, the US Congress could (and almost certainly will) eliminate all such public nuisance lawsuits when it passes a comprehensive climate change law. The industry will now be lobbying heavily, saying something like this to the Congress: “Please regulate us (weakly, of course) so that the courts will stop doing so.”
This is a classic situation where environmentalists win a big environmental case based on an old, old legal concept and this gives them bargaining power in the legislative process. This happened with cases against factories polluting the water without permits in the 1960s, a case against the Trans-Alaska oil pipeline in the early 1970s; a case against clear cutting in the National Forests in the mid 1970s. In each of those three cases, the law that was involved was a statute that was around 100 years old. The public nuisance cases cited by the Second Circuit are more than 100 years old today. Now the bargaining will begin.
State of Connecticut v. American Electric Power Co., Inc. 05-5104-cv, 05-5119-cv (2 Cir. Ct. App. 9/21/2009).
The opinion may be accessed here
Comments on the Environmental Law & Policy blog can be accessed here: http://legalplanet.wordpress.com/2009/09/21/connecticut-v-aep-three-comments/
LAW OF THE LAND 
My gut is saying Justice Sotomayor will probably signal to the rest of the Court that she will recuse herself from deciding the case given her involvement on the original panel. Anyone in know if she testified to how she would recuse herself in these situations at the confirmation hearings? I’m trying to research it right now.
If she does so, she will force any justices thinking of voting for cert to withhold their vote to avoid a 4-4 split affirming the decision. Given the potential of federal climate change law affirmatively displacing federal nuisance law within the next five years, I can’t imagine those on the Court disagreeing with the decision thinking that affirming the decision in a horribly splintered fashion would be worthwhile. If anything, they will wait until a similar case rises from another circuit.
By: Dan Jacobs on September 23, 2009
at 9:12 pm