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Courts Clash on Viability of Greenhouse Gas Public Nuisance Suits

Environmental Law Alert Peter A. Tomasi, Lauren G. Harpke, Cynthia A. Faur

In opinions issued over the past two months, three federal courts have strongly disagreed regarding whether large sources of greenhouse gas emissions - such as refineries and utilities - may be sued under common-law theories of nuisance. Over the sharp objections of industry, two federal appeals courts reversed the decisions of the courts below and concluded that such facilities may be liable to suit as a public nuisance. A federal district court determined, on somewhat different grounds, that nuisance actions were not a proper vehicle to address the harms caused by climate change, in a decision which will almost certainly be reviewed by a third federal appeals court. Read together, these cases suggest that although district courts are wary of climate change nuisance suits, appellate courts are forcing them to take a second look at the issue.

The first of these decisions was issued on September 21, 2009, when the Second Circuit issued its long awaited opinion in Connecticut v. American Electric Power Co Inc. ("AEP"), Case No. 05-5104-cv (Sep. 21, 2009), holding that various plaintiffs, including several states, a City and private land trusts, may pursue a federal common law public nuisance claim against electric generating utilities whose collective emissions represent five of the largest carbon dioxide emitters in the United States. The district court that first heard the case dismissed it on grounds that the Plaintiffs' complaint was a "non-judiciable political question" where the judiciary could not rule on a global warming nuisance claim without an "initial policy determination" by the elected branches. Connecticut v. Am. Elec. Power Co., 406 F. Supp. 2d 265, 272 (S.D.N.Y. 2005).

On appeal, however, the Second Circuit noted that "simply because an issue may have political implications does not make it non-justiciable." The Court determined that a request to limit emissions from specific power plants, whose emissions cause the plaintiffs, injury is appropriately within the domain of the judiciary.

Furthermore, the Court held that Plaintiffs need not wait for federal legislation or policy determinations before proceeding, but may seek remedies under common law. The Court did observe that once new federal laws or regulations addressing greenhouse gas emissions are enacted, they will then preempt any common law public nuisance claim. Until that time, however, federal courts are empowered to hear and adjudicate public nuisance suits.

As a result of the Second Circuit opinion, we may soon see a significant increase in public nuisance litigation. First, the decision puts forth a minimalist interpretation of standing requirements which opens the door to a wide array of potential plaintiffs. Most importantly, the Court's acknowledgement that the private land trusts have standing to bring a public nuisance suit may pave the way for other non-profits to bring similar public nuisance suits. In fact, an attorney with Natural Resources Defense Council ("NRDC") stated that his organization will "keep litigating ever more creatively to ensure that the law is followed and that the environment is protected." In doing so, the NRDC attorney vowed "cross-cutting and very creative and intense litigation."1

Additionally, the potential increase in litigation by private parties and environmental groups will likely go beyond greenhouse gas concerns. The Second Circuit's holding suggested that anything not currently regulated by the federal government is fair game for a public nuisance suit. As a result, the scope of potential public nuisance law suits following this decision could potentially include topics such as nonpoint water pollution or concentrated animal feeding operations' air emissions and runoff.

This threat of increased litigation resulting from the Second Circuit's ruling may encourage swift Congressional action to enact overarching federal greenhouse gas regulations, thus, preempting common law nuisance litigation. It is also possible, however, that doomsday predictions of drastically increased climate change litigation are highly overestimated; the Second Circuit case is only one of several public nuisance cases before various Circuits, and odds are favorable that a circuit split will result once other Circuits begin to rule on the public nuisance cases before them.

Proponents of tort liability for greenhouse gas emissions may find some support in the holding of the second appellate court to address this question. The Fifth Circuit recently addressed a similar claim in Comer v. Murphy Oil USA, No. 07-60756 (5th Cir., Oct. 16, 2009), a class action suit filed against various oil, coal, and chemical companies alleging that emissions from their facilities contributed to global warming, which caused a rise in sea levels and added to the "ferocity" of Hurricane Katrina. In holding that the plaintiffs could seek relief for property damage from Hurricane Katrina, the Court noted the AEP decision with approval, stating that "Although we arrived at our decision independently, the Second Circuit's reasoning is fully consistent with ours, particularly in its careful analysis of whether the case requires the court to address any specific issue that is constitutionally committed to another branch of government."

An opposing view was expressed by the third (and lone district) court to recently address the issue. In Kivalina v. Exxon Mobil Corp., Case C 08-1138 SBA (N.D. Cal. Sept. 30, 2009), the Court, dismissed for lack of jurisdiction a federal common law nuisance claim filed by the Village of Kivalina against 24 oil and utility companies, based on the companies' contribution to global warming which eroded the Arctic sea ice that protects the Village. As a result of global warming, the ice sheet has eroded such that it no longer provides necessary protection from winter storms, leaving the Village uninhabitable and in need of relocation.

Unlike the AEP and Comer courts, the Kivalina court held that the Plaintiffs' federal public nuisance claim regarding greenhouse gas emissions was a non-justiciable political question. In arriving at this conclusion, the district court stated there were no judicially discoverable and manageable standards for a fact-finder to apply and explicitly disagreed with the AEP court's conclusion that our prior air and water pollution cases provide sufficient guidance. The district court also held that a public nuisance claim for greenhouse gases would require the factfinder to allocate responsibility for global warming, which is a task appropriately reserved for the executive or legislative branches. The California district court further held that Plaintiffs do not have standing to bring suit.

The Village of Kivalina will likely appeal the decision to the Court of Appeals for the Ninth Circuit, a Circuit that has been characterized as more amendable to large environmental tort proceedings than others. The future of public nuisance litigation for greenhouse gases may vary greatly, depending on whether the Ninth Circuit follows the path of the Second and Fifth Circuits and remands the lawsuit, or whether the Ninth Circuit affirms the district court, resulting in a circuit split. Although long-term effects of the various greenhouse gas public nuisance decisions will only be revealed with time, increased litigation in the short-term is likely an unavoidable result as private party plaintiffs take advantage of the current favorable precedent in both the Second and Fifth Circuits.

If you have questions or need additional information, contact Peter A. Tomasi or Lauren Grahovac Harpke in Milwaukee at 414-277-5667 / or 414-277-5183 /, or Cindy Faur in Chicago at 312-715-5228 / Otherwise, contact your regular Quarles & Brady attorney.

1, "Climate Ruling Boosts Push for 'Intense' New Environmental Tort Claims," 10/5/2009.