PublicNuisanceWire.com

The U.S. Court of Appeals for the Second Circuit has ruled that five of the nation’s largest electric utility companies can be sued for creating a public nuisance by emitting greenhouse gases (GHG) that allegedly contribute to global warming.

This is the first time a court has allowed public nuisance litigation involving GHG to proceed to trial. Until now, courts have ruled that such claims present non-justiciable political questions. The Second Circuit explicitly rejected the political question doctrine and found that the plaintiffs have standing to sue and present common law nuisance claims. The court vacated the decision of the federal district court and remanded the case for further proceedings.

“This decision is out of line with current law and thinking about how to address climate change," said Stan Anderson, executive director of the Public Nuisance Fairness Coalition. "These are issues seeking a comprehensive legislative solution, not a piecemeal approach by activist courts.”

Connecticut, New York, California, Iowa, New Jersey, Rhode Island, Vermont, Wisconsin and the City of New York originally filed suit against American Electric Power, The Southern Company, the Tennessee Valley Authority, XCEL Energy, and Cinergy in 2004, seeking abatement of "ongoing contributions to a public nuisance. Defendants’ power plants emit large quantities of carbon dioxide and are contributing to an elevated level of carbon dioxide in the atmosphere," their complaint read.

The Second Circuit panel's decision is likely to be challenged -- and may wind up before the U.S. Supreme Court, where the issue of non-justiciable political questions will get another hearing.

"Addressing climate change is fundamentally a legislative issue that should be decided by the People's elected representatives," attorneys Peter Glaser and Carroll W. McGuffey III noted in a recent Washington Legal Foundation paper on the EPA's proposed endangerment finding on CO2. "Only Congress can balance the overriding economic and environmental issues involved, and only Congress can balance the differing economic effects that climate change regulation poses for different regions of the country and different sectors of the economy."

Glaser and McGuffey argued that "individual state and federal court judges are not equipped to address these broad climate change issues in the context of general tort law. Judges in lawsuits are concerned only with addressing the rights of individual litigants. Judges are not lawmakers; they only interpret the law as promulgated by state legislatures or by Congress, or as developed through common law. The climate change tort lawsuits, however, ask the courts to determine broad environmental policy," the two attorneys emphasize. "For instance, in some of the lawsuits, the courts were asked to issue injunctive relief ordering the defendant companies to reduce their GHG emissions. Even the lawsuits seeking damages, if successful, would ultimately compel the defendant companies to reduce their GHG emissions. But the amount by which various sectors of the economy should reduce their emissions is a fundamental policy question that should be determined by Congress, not judges."