In January U.S. District Judge Lacy Thornburg ruled that coal-fired plants in neighboring states create a public nuisance for North Carolina and ordered the Tennessee Valley Authority to reduce emissions by a specified deadline, at a cost of roughly $1 billion. The decision was seen as likely to spur additional public nuisance suits against coal-fired power plants and lay the groundwork for establishing global warming as a litigable tort.
The U.S. Chamber of Commerce filed an amicus brief in the appeal, asserting that the previous ruling violated existing federal air pollution provisions.
The Washington Legal Foundation urged the Environmental Protection Agency to clarify that any Endangerment Finding it might issue with regard to greenhouse gases (GHG) "is not intended to encourage, or to be used as evidence in, tort lawsuits seeking to enjoin or penalize GHG emissions.” The Foundation expressed concern that "EPA's proposal may have the unintended consequence of encouraging tort lawsuits against companies that emit GHGs, and particularly the hundreds of thousands of businesses whose operations result in the emission of CO2."
The U.S. Court of Appeals for the Second Circuit ruled that five of the nation’s largest electric utility companies could be sued for creating a public nuisance by emitting greenhouse gases (GHG) that allegedly contribute to global warming. Previously, courts had 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.
In dismissing a global warming suit filed by an Alaskan native village against Exxon Mobil, U.S. District Court Judge Saundra Brown in San Francisco argued that the issue was a political one best handled by lawmakers, not judges.
In October, the U.S. Court of Appeals for the Fifth Circuit reversed a trial court decision rejecting a climate change lawsuit as a nonjusticiable political question. In Comer v. Murphy Oil USA, Gulf Coast property owners sued a myriad of energy, fossil fuel, and chemical companies, alleging that their greenhouse gas emissions exacerbated the ferocity of Hurricane Katrina and thereby contributed to property damage.
Cash-strapped states and cities set their sights on another unpopular industry, adapting the public-nuisance attack against subprime mortgage lenders. Nuisance was also one of the weapons used by New York City lawyers trying to convince a District Court jury in Manhattan that Exxon Mobil knew 20 years ago that a gasoline additive (MTBE) would eventually contaminate groundwater.
Contingency contracts between law firms and governments raised eyebrows throughout the year, especially when political contributions came into play. Janssen Pharmaceutica, a subsidiary of Johnson & Johnson, was sued by the state of Pennsylvania for allegedly promoting off-label uses for Risperdal, an antipsychotic drug. The state’s case was handled by Houston law firm Bailey, Perrin & Bailey, whose founder contributed thousands of dollars to the reelection fund of Pennsylvania Governor Ed Rendell.
