\nA coalition of states and private land trusts, led by the State of
\nConnecticut, that were frustrated with Washington’s failure to
\nintroduce legislation or regulations limiting greenhouse gas emissions
\nsued several of the nation’s largest electric utilities in Connecticut v. American Electric Power.
\nThe coalition alleged that the companies’ greenhouse-gas emissions
\namounted to a “public nuisance” in the form of global warming. Under
\nthe nuisance principle—one of the oldest in English common law—a
\nproperty owner may ask the court to stop a defendant who is interfering
\nwith the owner’s enjoyment of his own property, and, in some
\ncircumstances, to pay damages. In the Connecticut case, the plaintiffs
\nthus sought to persuade the court to order the utility companies to
\nreduce their greenhouse-gas emissions by showing how such gases cause
\nglobal warming, which in turn was creating increased temperatures,
\nalternating drought and floods, destruction of natural habitats, and
\ncorresponding decreases in property values and human health and
\nwelfare.<\/p>\n
<\/p>\n
Though the cause-and-effect aspect of this argument might seem hard
\nto prove in court, global-warming victims in other corners of the
\ncountry started filing similar lawsuits. In Comer v. Murphy Oil,
\nresidents of Mississippi’s Gulf Coast sued nearby oil refineries for
\ndamages they suffered during Hurricane Katrina, alleging that the
\nrefineries’ greenhouse-gas emissions contributed to the force of the
\nstorm. In 2008, in Native Village of Kivalina v. Exxon,
\nresidents of a small village on a barrier island off the Alaskan coast,
\nwhose homes are being steadily submerged by rising sea levels, filed
\nsuit against two dozen energy companies for their contribution to
\nclimate change. The villagers, who are native Inupiat, seek more than
\n$400 million in damages to cover the cost of relocating their homes,
\nagain using the doctrine of nuisance law.<\/p>\n
<\/p>\n
Each of these cases was
\ndismissed at the trial court level. The judges said that the suits
\nraised a “political question” not fit for the judicial branch to rule
\non-a tool that allows judges to punt tricky cases they don’t want to
\ndecide. Two of the lower courts also said that the parties lacked legal
\nstanding to bring the lawsuits, because they could not show their
\ninjuries were sufficiently traceable to the defendants’ conduct.
\nHowever, the plaintiffs appealed these dismissals to federal courts of
\nappeals, arguing that they do have standing and that the “political question” doctrine does not apply.<\/p>\n
<\/p>\n
Then, to the shock of the legal community and even some environmentalists,
\ntwo federal appeals courts reversed these rulings. Last September,
\nafter more than three years of deliberating, a two-judge panel on the
\nU.S. Court of Appeals for the 2nd Circuit overturned the dismissal of Connecticut v. AEP in a sweeping 139-page opinion. A few days later, a three-judge panel of the U.S. Court of Appeals for the 5th Circuit released a similar opinion reinstating the Katrina victims’
\nlawsuit. The five judges responsible for these rulings-three of whom
\nwere appointed by Republican presidents-found that the plaintiffs had
\nstanding and that the evidence of the relationship between greenhouse
\ngases and climate change was sufficient for the cases to go forward.
\nThe courts did not punt because of the “political question”
\ndoctrine, pointing out that federal courts have successfully handled
\npublic nuisance claims involving environmental damage for more than a
\ncentury.<\/p>\n
Here the 2nd Circuit relied heavily on a little-known, century-old Supreme Court case called Georgia v. Tennessee Copper Co.
\nThe suit began in the early 1900s, when the State of Georgia sued two
\ncopper companies in Tennessee for emitting noxious emissions that
\ndestroyed plants and crops in Georgia. No less a figure than Justice
\nOliver Wendell Holmes found the copper companies liable for the
\nnuisance of air pollution and ordered the companies to reduce their
\nemissions. When the companies failed to fully comply, the court set
\nemissions limits, with monitoring requirements and costs divided
\nbetween the defendants. In other words, the court established the same
\nsort of regulatory regime Congress would introduce 50 years later with
\nthe 1970 Clean Air Act.<\/p>\n
<\/p>\n
Today, federal courts dealing with global-warming lawsuits are faced with the same dilemma as the Supreme Court was in Tennessee Copper,
\nonly on a much larger scale. Air pollution from one state is causing
\nharm to other states (indeed, to the whole world). Despite the
\nencouraging rulings from the courts of appeals, however, today’s
\nglobal-warming nuisance suits face an uncertain future. Last month, the 5th Circuit announced a rehearing en banc for the
\nKatrina victims’ lawsuit, meaning that all of the court’s judges will
\nsit and rehear the case. The Alaskan villagers, who lost before the
\ndistrict court, now move to the 9th Circuit Court of Appeals. One or more of these plaintiffs may well wind up before the Supreme Court.<\/p>\n
<\/p>\n
And there a conservative majority may be more sympathetic to the
\nfossil-fuel industry, which argues that the courts should butt out
\nbecause Washington is doing plenty about global warming. The industry’s
\nExhibit A is in fact another court case: The Supreme Court’s 2007
\nruling in Massachusetts v. EPA, which held that greenhouse
\ngases are air pollutants within the meaning of the Clean Air Act,
\nallowing the EPA to regulate the gases directly.<\/p>\n
But the 2nd Circuit in September rejected the argument that this displaced the nuisance suits, noting that the EPA had not yet used the Clean Air Act to regulate greenhouse gases. The court
\nacknowledged that this could change if and when the Obama
\nadministration gets moving.<\/p>\n
Judge Peter Hall, the author of the 2nd Circuit’s opinion, conceded the same point in a recent speech at
\nGeorgetown Law School. The courts would happily get out of the business
\nof hearing nuisance suits about climate change, he said, if the EPA
\ndoes its job in restricting these emissions-or better yet, if Congress
\npasses a comprehensive climate bill. In the meantime, however, Judge
\nHall added that judges have the responsibility to take seriously
\nnuisance lawsuits brought by property owners facing strengthening
\nhurricanes and rising sea levels. These lawsuits, he said, probably
\nprovide a backstop and “some small impetus” to stonewalling lawmakers.
\nIt’s a trade-off: Polluters can either get out of the way of Congress
\nor face the, well, nuisance of lawsuits for decades to come.<\/p>\n
<\/p>\n
<\/p>\n
<\/p>\n
<\/a><\/p>\n Related Links:<\/strong><\/p>\n The Best Way to Celebrate Earth Day<\/a><\/p>\n