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Greenhouse Gas Nuisance Suit Against Utilities to Proceed
Alert
09.22.2009
On September 21, 2009, the U.S. Court of Appeals for the Second Circuit ruled that a public nuisance suit brought by New York and several other states against several large electric utilities could proceed based on allegations that coal-fired power plants contribute to global climate change.
Preti Flaherty's Climate Strategy Group is monitoring this case and examining its potential implications for businesses that emit greenhouse gases.
Background on the case:
- In 2004, eight states and New York City ("States"), and three land trusts (collectively, "Plaintiffs") separately sued six electric power corporations that own and operate coal-fired-power plants in twenty states ("Defendants") claiming that the Defendants' contributions to global warming constitute a public nuisance.
- The States seek to force each Defendant to decrease their contributions to global warming by capping their current carbon dioxide emissions and then reduce their emissions by a specified percentage each year for at least ten years.
- The Trusts have made similar claims but specifically allege that global warming diminishes the property interests they hold in trust. The Trusts seek to abate Defendants' "ongoing contributions to global warming."
- On September 5, 2005, the District Court for the Southern District of New York dismissed the Plaintiffs' claims. The District Court ruled that the Plaintiffs' claims raised a non-justiciable political question, meaning that it was not possible to decide the case without an initial policy determination by other branches of government.
The Second Circuit's decision yesterday overturned the District Court's 2005 decision and sent the claims back to the trial court for further proceedings. The Second Circuit also concluded that the States and the Trusts had the right to challenge the Defendants' contributions to global warming and that the Plaintiffs' claim under the federal common law of nuisance.
The Second Circuit pointed out that it considers greenhouse gas public nuisance claims appropriate for review – even in the absence of congressional action in this area. The Court cited U.S. Supreme Court precedent (pre-Clean Water Act public nuisance water pollution claims) in its final paragraph – which language . could be read as chiding Congress for not yet regulating greenhouse gases.
Questions?
If you have questions regarding this ruling and the impacts that it may have for your company please contact Jeff Talbert or Tony Buxton with Preti Flaherty's Climate Strategy Group. A link to the full opinion is provided above.