On September 21, 2009, the Second Circuit Court of Appeals ruled that U.S. federal courts can decide common law actions that allege private emitters of greenhouse gases (GHGs) are liable for creating a public nuisance. The landmark decision, State of Connecticut v. American Electric Power Company Inc., overturns a 2005 judgment of the district court, which had dismissed the case on the grounds that it presented a non-justiciable political question – in other words, a question that politicians rather than the courts should decide. The decision suggests a greater willingness by a least one U.S. court to consider common law climate change claims and could result in an increase of public nuisance claims against large emitters of GHGs.
Background
The public nuisance action was brought by two groups of plaintiffs – eight U.S. states and the City of New York (the States) and three land trusts (the Trusts) – against six electric power companies that own and operate fossil-fired plants in 20 U.S. states (the Defendants).1 At the time the action was filed, the Defendants were responsible, annually, for approximately 25% of the U.S. power sector's carbon dioxide (CO2) emissions and 10% of all CO2 emissions from human activities in the United States. To mitigate this impact, the action seeks to hold Defendants jointly and severally liable for creating, contributing to or maintaining the alleged public nuisance of climate change. The State plaintiffs, in particular, seek to enjoin each Defendant to abate that nuisance, first by capping its CO2 emissions and then by reducing these emissions by a specified percentage each year for at least 10 years.
Second Circuit Decision
On appeal, the Second Circuit ruled that the case does raise justiciable questions, thus allowing the plaintiffs' action to proceed. According to the Second Circuit, "the political implications of any decision involving possible limits on carbon emissions are important in the context of global warming, but not every case with political overtones is non-justiciable."
After ruling that the case was justiciable, the Second Circuit went on to find that the plaintiffs all had standing to bring the public nuisance actions. The Second Circuit affirmed the decision in Massachusetts v. EPA, in which the Supreme Court had ruled that states may have standing to bring a climate change action to protect their sovereign interests. Perhaps more important, however, the Second Circuit also found that both the States and the Trusts had standing because their property rights had allegedly suffered a direct, tangible injury.
The Second Circuit also dismissed the Defendants' claim that existing federal statutes displace the plaintiffs' common law action. That said, the Court did acknowledge that the opportunity still exists for the U.S. Environmental Protection Agency (EPA) to regulate GHG emissions, or for Congress to adopt comprehensive climate change legislation that would preempt climate change nuisance lawsuits. Until then, however, the Second Circuit ruled that the plaintiffs' actions were rightly brought under the common law doctrine of nuisance. According to the Second Circuit, U.S. courts have been adjudicating environmental claims under the common law for over a century and can and should continue to do so.
Potential Consequences
To date, defendants in U.S. climate change actions have regularly argued that such actions are not justiciable. Similarly, as we noted in a previous bulletin, a Canadian court recently found that the system of parliamentary accountability established by the federal Kyoto Protocol Implementation Act, which requires that the Minister of the Environment prepare and implement an annual Climate Change Plan, was not open to judicial review.
The Second Circuit decision, subject to an appeal, has made it clear that federal courts will at least consider climate change actions based on nuisance. If it stands, the Second Circuit decision may result in more public nuisance suits being brought in the United States against GHG-emitting companies, though plaintiffs will still be challenged to prove that the emitting companies caused the alleged public nuisance. This decision comes at the same time as information about these companies and their emissions is becoming more readily available.
Under a final rule recently issued by U.S. Environmental Protection Agency (EPA), thousands of industrial companies will be required to report their GHG emissions starting in 2010. Plaintiffs may eventually use this information to help select targets for future litigation. The decision, particularly if it is followed by an influx of climate change nuisance claims may pressure Congress or the EPA bring into force comprehensive regulation.
For further information, the Second Circuit decision can be accessed here.
Footnote
1.The complete list of States is Connecticut, New York, California, Iowa, New Jersey, Rhode Island, Vermont and Wisconsin, as well as the City of New York. The complete list of Defendants is American Electric Power Co., Inc., American Electric Power Service Corp., Southern Company, TVA, Xcel Energy, and Cinergy Corp.
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