Wednesday, September 23, 2009
John Bonine sent out an immediate e-mail to the ENVLAWPROF listserve, giving a succinct summary of the 2nd Circuit's opinion in the Connecticutt v. American Electric Power Co. public nuisance. He's given me permission to share it with you:
An incredibly important case on global
warming was decided by a US Court of Appeals today, Connecticut vs. American
Electric Power Company. I explain it in
the following message. At the end of
this message is a link to the 139-page court decision.
The Court of Appeals for the Second
Circuit (an important, almost-apex, regional court based in New York) ruled
today that “public nuisance” law (part of tort, or damages law) can be used to
sue power companies based upon injuries from global warming. Eight states of the US, New York City, and
three nonprofit (NGO) “land trusts” that seek to preserve environmentally
sensitive land all sued power companies that own and operate fossil fuel (coal,
etc.) power plants in 20 states of the US.
(1) The Court decided that this dispute
about harm from global warming emissions presents legal issues that can be
decided by a court, rather than merely political questions that are the area
for legislatures or the President.
(2) One important issue was “standing to
sue.” The Court decided that because the
NGOs own property interests that can be harmed by weather events as a result of
global warming, they clearly have standing to sue. (In addition, the states have standing to sue
private power companies because the states can represent the interest of their
The Court decided that the standing of the NGO land trusts can be based on
future injury because injuries are “already in
process as a result of the ongoing
emissions by defendants that contribute
to increasing temperatures.”
(4) The Court decided that it was proper
to bring a damage lawsuit based on the common law of “public nuisance.” This legal doctrine was imported from
England, the Court pointed out. A
public nuisance is “an unreasonable interference with a right
common to the general public.”
(5) The Court decided that some entities
that are “non-state” (private parties) have the right to file lawsuits against
a public nuisance—not only state governments.
The Second Circuit had not previously decided this issue. It cited cases taking the same position on
the issue from the Seventh Circuit (in the Midwest of the US) and the Third
(6) The Court decided that the NGO land
trusts were among the entities that could file this particular public nuisance
case. The law requires that only private
parties (including NGOs) who are specially injured—in a manner different from
the general public—can file public nuisance cases. Not every private person could bring a public
nuisance case. Not even every private
landowner could do so. But these
particular land trusts can because they own ecologically sensitive land, which
they have invited the public to visit and enjoy, and their charter, purpose,
and mission is to preserve land for public enjoyment.
(7) The Court decided that the passage
of legislation by the US Congress did not eliminate the federal common law of
public nuisance when it adopted the Clean Air Act. This issue is crucial. It is also an issue that could eventually
bring an end to the importance of this case for greenhouse gas lawsuits. The Court stated that the Clean Air Act has
not yet displaced (eliminated) the federal common law of public nuisance for
greenhouse gas emissions cases. That is
because the US Environmental Protection Agency has not (yet) ruled that
greenhouse gases are a pollutant—and even if it does so, it has not yet even
started the process of doing so for greenhouse gas emissions from stationary
sources like power plants. Also,
Congress could act separately.
The case may go to the US Supreme Court
and there is a chance that it could be reversed there. Or it may not. Also, the US Congress could (and almost certainly
will) eliminate all such public nuisance lawsuits when it passes a
comprehensive climate change law. The
industry will now be lobbying heavily, saying something like this to the
Congress: “Please regulate us (weakly,
of course) so that the courts will stop doing so.”
This is a classic situation where environmentalists win a big environmental case based on an old, old legal concept and this gives them bargaining power in the legislative process. This happened with cases against factories polluting the water without permits in the 1960s, a case against the Trans-Alaska oil pipeline in the early 1970s; a case against clearcutting in the National Forests in the mid 1970s. In each of those three cases, the law that was involved was a statute that was around 100 years old. The public nuisance cases cited by the Second Circuit are more than 100 years old today. Now the bargaining will begin.
“Today, we celebrate a victory for mother Earth. Global Warming polluters everywhere: you are on notice that you are committing a tort and we will sue you.”
PS Below are some excerpts from the case.
All parties have stated a claim under the federal common law of nuisance, which we find is grounded in the definition of “public nuisance” found in the Restatement (Second) of Torts § 821B. Federal statutes have not displaced Plaintiffs’ federal common law of nuisance claim.
The complaints against Defendant-Appellant TVA may not be dismissed on the grounds of the political question doctrine or the discretionary function exception. Finally, because we apply the federal common law of nuisance, we do not adjudicate Plaintiffs-Appellants’ alternative state law public nuisance claims.
With regard to air pollution, particularly greenhouse gases, this case occupies a niche similar to the one Milwaukee I occupied with respect to water pollution. With that in mind, the concluding words of Milwaukee I have an eerie resonance almost forty years later. To paraphrase:
“It may happen that new federal laws and new federal regulations may in time pre-empt the field of federal common law of nuisance. But until that comes to pass, federal courts will be empowered to appraise the equities of the suits alleging creation of a public nuisance” by greenhouse gases. Milwaukee I, 406 U.S. at 106.
The judgment of the district court is VACATED, and the cases are REMANDED for further proceedings.”
(If that doesn’t work. Go to http://www.ca2.uscourts.gov/opinions.htm and click on “Today’s.”)