On September 21, 2009, the Second Circuit Court of Appeals reversed a district court’s 2005 dismissal of a lawsuit brought by several states, New York City, and private land trusts against six utility companies who own and operate fossil-fuel-fired power plants.
The plaintiffs in Connecticut v. American Electric Power Company seek to force the defendants to cap and reduce their carbon dioxide emissions in view of the “clear scientific consensus” on global warming. Rather than sue pursuant to the Clean Air Act, however, the plaintiffs have alleged claims under the federal common law nuisance for injuries attributable to global warming such as reduction in mountain snowpack and its concomitant flooding, increased illness from heat waves and smog, prolonged droughts, flooding, and wildfires, and beach erosion and sea level rise.
The Second Circuit’s opinion did not assert that the plaintiffs will succeed in imposing caps on carbon dioxide emissions, but is very important due to the likelihood that it will prompt a rush of litigation by states and municipalities as well as private interest groups against a broad array of companies.
The ruling – especially when combined with a recent opinion by a federal court that ordered the Tennessee Valley Authority utilize specific pollution controls based on a state nuisance law claim, North Carolina v. TVA, 593 F.Supp.2d 812 (W.D.N.C. 2009) – leaves open a nuisance cause of action against any industrial facility that emits significant quantities of greenhouse gases, and that risk will survive unless and until Congress or the Environmental Protection Agency more pervasively regulate carbon dioxide emissions. For our updates on recent developments in carbon dioxide regulation, please see http://www.ryanwhaley.com/epa-will-begin-monitoring-greenhouse-gas-emissions-in-20101 and http://www.ryanwhaley.com/epa-to-regulate-greenhouse-gasses.
Perhaps most important, the opinion will help future nuisance cases survive dismissal by imposing a low bar for proving the link between CO2 emissions and the claimed injuries: “[Causation] is an issue best left to the rigors of evidentiary proof at a future stage of the proceedings, rather than dispensed with as a threshold question of constitutional standing.”
The Connecticut opinion reveals that until there is a national carbon dioxide emissions policy public and private parties will be able to use the federal courts to seek incremental relief by imposing carbon dioxide caps on individual facilities. The Second Circuit stated:
Nowhere in their complaints do Plaintiffs ask the court to fashion a comprehensive and far-reaching solution to global climate change . . . . A decision by a single federal court concerning a common law of nuisance cause of action, brought by domestic plaintiffs against domestic companies for domestic conduct, does not establish a national or international emissions policy (assuming that emissions caps are even put into place).
The Connecticut opinion should be studied closely by plant managers, environmental managers, and counsel for any facility that produces significant quantities of greenhouse gases, so that going forward members of industry can (1) plan for potential litigation and (2) devise an approach for addressing whether comprehensive federal regulation of greenhouse gases will be preferred over piecemeal litigation.
The Second Circuit’s opinion in Connecticut v. American Electric Power Co., No. 05-5104 (2d Cir. Sept. 21, 2009) can be found here: http://www.ca2.uscourts.gov/decisions/isysquery/f7872f7d-579c-48ea-8483-e14964926376/28/doc/05-5104-cv_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/f7872f7d-579c-48ea-8483-e14964926376/28/hilite/.
Posted on
Fri, October 9, 2009
by RWCS