PublicNuisanceWire.com

HARTFORD, Conn. -- This week’s Second Circuit Court ruling could have profound implications for the future of climate change litigation, according to an environmental law expert.

Earlier this week, the U.S. Court of Appeals for the Second Circuit ruled that electric utility companies can be sued for contributing to global warming by emitting too much greenhouse gas.

In 2004, Connecticut, New York, California, Iowa, New Jersey, Rhode Island, Vermont, Wisconsin and the City of New York filed suit against American Electric Power, the Southern Company, the Tennessee Valley Authority, XCEL Energy, and Cinergy.

Trent Taylor, an environmental lawyer with McGuire Woods LLP, said the verdict was extremely lopsided and unpredictable.

“It is the first time that a court has permitted this type of litigation to survive a motion to dismiss. Not only did the court state that the political question doctrine was not a valid defense for defendants; the court went a step further and said the plaintiffs have standing and that the allegations in the lawsuit actually stated a valid claim under the federal common law of nuisance,” he said.

Taylor said that not even the Sierra Club could have written an opinion more biased than the one delivered.

“This (ruling) means that unless the full Second Circuit or the U.S. Supreme Court steps in and reverses this decision, this suit will go to trial -- a heretofore unthinkable result in the context of climate change litigation,” he said.

Prior to this decision, plaintiffs in this type of litigation had been unable to gain any traction. With the removal of the political question barrier, the energy industry can expect an uptick in copycat suits.

“The fact that this legal authority comes from not only a federal circuit court of appeals, but the widely respected Second Circuit, will further embolden plaintiffs,” Taylor said.