Tracey Ullom

September 24, 2010

A Petition for Certiorari was recently filed with the Supreme Court of the United States for a case involving a federal common law nuisance claim in the environmental law arena. In Connecticut v. American Elec. Power Co., several states, land trusts, and a city brought suit against a group of electric companies under the public nuisance doctrine claiming that as the largest producers of carbon dioxide in the U.S. the companies have a direct effect on climate change. The plaintiffs requested a court order that the companies cap their emissions, and did not seek any monetary damages.

Federal public nuisance is described as: "an unreasonable interference with a right common to the general public." The plaintiffs in this case argue that the ongoing contribution to global warming by the defendants constitutes an unreasonable interference with the common right of the public to "vital natural resources."

Initially, the trial court dismissed the case as non-justiciable under the political question doctrine due to the impossibility of deciding the question without an initial policy determination. The court stated that there are a number of initial policy determinations that must be made before the court can properly adjudicate a global warming nuisance claim. The plaintiffs appealed to the Second Circuit Court of Appeals.

On appeal, the plaintiffs renewed their claim that the electric companies are liable under federal nuisance for their contribution to global warming due to the emission of GHGs. The Second Circuit vacated the trial court's ruling. The Court concluded that private parties have standing to bring common law public nuisance claims for injuries caused by climate change, that even far-reaching claims of nuisance are within the jurisdiction of the judiciary, and that the plaintiffs had successfully alleged a public nuisance claim under federal common law.

The significance of this case for Supreme Court certiorari purposes includes the now divided ruling between several Circuits of whether private and public plaintiffs have standing in a climate tort claim. The case is also ripe for certiorari because the environmental claim is based on the common law and not on any legislative or executive action. Under the Second Circuit's decision, large GHG emitters can now be exposed to tort liability for their climate change impacts. This puts elevated pressure on these emitters to change practices to stay out of the tort liability arena.

With the Petition for Certiorari recently filed, it is up in the air as to whether or not the Supreme Court will weigh in on the topic. If the Supreme Court upholds the ruling of the Second Circuit environmental issues and problems will be open to common law challenges in addition to current legislative and executive challenges.

Sources:

Connecticut v. American Elec. Power Co., Inc., 406 F.Supp.2d 265 (S.D.N.Y. 2005).

Connecticut v. American Elec. Power Co., Inc., 582 F.3d 309 (2nd Cir. 2009), reversing 406 F.Supp.2d 265 (S.D.N.Y. 2005), petition for hearing en banc filed, No. 05-5104 (2nd Cir. Nov. 17, 2009).

Nancy G. Milburn, Connecticut v. AEP Decision, 35 Colum. J. Envtl. L. field rep. 1 (Apr. 12, 2010) available at http://www.columbiaenvironmentallaw.org/articles/connecticut-v-aep-decision.