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Are Greenhouse Gas Emissions a Public Nuisance?

By Katerina Milenkovski, Litigation News Associate Editor – December 2, 2009

The United States Court of Appeals for the Second Circuit recently ruled that a public nuisance lawsuit based on greenhouse gas emissions—Connecticut et al. v. American Electric Power et al. (AEP) [PDF]—against six electric power companies could proceed.

The trial court had originally dismissed the case as a “political question” not proper for judicial review. The appeals court, however, found that the plaintiffs had standing to bring the nuisance claims.

The court also found that while the Clean Air Act gave the federal Environmental Protection Agency authority to regulate greenhouse gas emissions, the fact that the EPA had not done so meant that the plaintiff’s claims were not displaced by federal legislation.

The plaintiffs—eight states, the City of New York, and three land trusts—allege that emissions from the power plants operated by the defendants contribute to global warming, which in turn has and will continue to have substantial adverse affects on their environments, residents, and property, and that it will cost billions of dollars to respond to these problems.

The plaintiffs also seek to permanently enjoin each defendant to abate the nuisance by capping carbon dioxide emissions and then by reducing emissions by a specified percentage each year for at least 10 years.

Currently there is no federal legislation to regulate greenhouse gases, although a bill to do just that passed the House this summer and is awaiting action by the Senate.

The EPA has also proposed rulemaking that would regulate carbon dioxide emissions, but no rules have been finalized. For now, where there is no federal displacement of the common law, there is the possibility that similar nuisance cases may be brought.

Fifth Circuit Case
Indeed, shortly after the AEP decision, the United States Court of Appeals for the Fifth Circuit ruled that a mass tort action against a number of chemical and petroleum companies could similarly proceed under nuisance and other tort claims.

The plaintiffs in Comer et al., v. Murphy Oil USA et al. [PDF] seek to hold a group of industrial defendants liable for the damage caused by Hurricane Katrina, which they maintain was made more destructive because of the affects of greenhouse gas emissions on the climate and sea levels.

The Fifth Circuit noted that it agreed with the Second Circuit’s reasoning in AEP, particularly on the issue of whether the matter was a political question. Unlike the AEP case, the Fifth Circuit case seeks compensatory and punitive damages against companies including Shell Oil, Exxon Mobil, ConocoPhillips, Dow Chemical, Duke Energy, and DuPont.

Comparison of the Cases
“I am more concerned, and I think companies should be more concerned, about the analysis used by the Fifth Circuit in Comer,” says Kevin Bruno, Newark, cochair of the ABA Section of Litigation Environmental Litigation Committee.

“If you compare the two cases, the nature of the plaintiffs and the nature of the relief sought in each case are dramatically different,” Bruno says.

“The Second Circuit plaintiffs are mainly states and cities, and the relief they seek looks a lot like what Congress might eventually require of industry—specific caps on emissions over a 10-year period. The Fifth Circuit plaintiffs are private parties looking for monetary damages for harm to private property and public property of value to them. While federal legislation would basically moot the issues in the Second Circuit by giving the plaintiffs the relief they seek, the claims brought in the Fifth Circuit could survive and go forward,” Bruno explains.

“Obviously, time will tell whether these cases open the floodgates of litigation,” says Charles Denton, Grand Rapids, MI, former cochair of the Section’s Environmental Litigation Committee.

Denton cautions that the courts haven’t reached the merits of either case yet. “There are huge scientific and practical hurdles for the plaintiffs to overcome in proving that their harm is caused by defendants’ emissions. I think the challenge of proving causation consistent with Daubert requirements is really a stretch,” says Denton.

“I think these decisions, just like the Supreme Court decision in Massachusetts v. EPA [PDF], will at some point and on some level have an impact on the legislative front,” adds Bruno.

“Companies are going to be concerned about the risks of litigation and may end up supporting legislation to eliminate such risks and the burdens of a patchwork of inconsistent state regulations,” he says.

Keywords: Environment litigation, global warming, Second Circuit, Fifth Circuit, Environmental Protection Agency



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