Wednesday, September 23, 2009

Conn. v. Amer. Electric Power Co. public nuisance case

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 citizens.)

(3) 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 Circuit (mid-Atlantic). 

(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.

 But in the meantime it is a huge victory.

 The leading lawyer in this case—a “private public interest lawyer” in Massachusetts who comes to the Public Interest Environmental Law Conference every year and keeps in touch with all of us by e-mail (Matt Pawa), declared this a few minutes ago in an e-mail:

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.


 “As we have explained, supra, the district court erred in dismissing the two complaints on the ground that they presented non-justiciable political questions. We now review our additionalholdings. The States have parens patriae and Article III standing, in their quasi-sovereign and proprietary capacities respectively, and New York City and the Trusts have Article III standing.

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  and click on “Today’s.”)

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