December 6, 2010 

Written By: William F. Stewart

This article is an interpretation of current law and is offered for informational purposes only. This material is not legal advice and should not be construed or used as a substitute for the advice of an attorney.

Earlier today, the United States Supreme Court granted a petition to hear the appeal in the high-profile climate change nuisance case of Connecticut v. AEP. In AEP, several states and environmental groups had filed suit against power companies seeking an abatement of "the public nuisance of global warming." The plaintiffs alleged that the defendant utilities' combustion of fossil fuels had contributed to elevated levels of atmospheric CO2--which, in turn, had lead to beach erosion, droughts, and floods. After a New York federal district court dismissed the suit on the grounds that the regulation of greenhouse gas emissions was a political question best left for the elected branches of government, the Second Circuit Court of Appeals reversed. The appellate court's decision to let this case proceed, issued last September, sent shockwaves through the energy industry, opening the door for an untold number of climate change claims and lawsuits.

The Supreme Court will hear argument next spring over whether the plaintiffs' federal nuisance claims can proceed. Among the critical issues is whether the judiciary, through the adjudication of nuisance litigation, is the branch of government best suited to regulate greenhouse gas emissions. Interestingly, both the Obama administration, and more conservative organizations, have argued against climate nuisance litigation on the grounds that Congress and/or the EPA are in a better position to provide a comprehensive (non-patchwork) approach to establishing a national sustainable energy strategy and to regulating GHG emissions.

The continuing developments in AEP will be closely monitored by parties in the only other climate nuisance cases currently pending in U.S. Courts--Native Village of Kivalina v Exxon/Mobil Corp. et. al., and Comer v. Murphy Oil USA, et al. In Kivalina, a California federal trial court dismissed a global warming nuisance claim on political question grounds, and that case is currently before the Ninth Circuit. In Comer, a Mississippi federal trial court dismissed claims that the defendants' emissions of fossil fuels (and the resultant warming of the atmosphere) had contributed to the strengthening of Hurricane Katrina. Comer "passed through" the Fifth Circuit due to a lack of quorum, and may soon join AEP before the Supreme Court.

The AEP appeal will be fascinating in its own right because, if affirmed, it may open up a Pandora's box of climate litigation. Under the Second Circuit's ruling, any entity with "special" climate harm--harm that is different in kind or in scope from the general public--would have standing to pursue large GHG emitters. For the simple reason that this outcome could be crippling to the national economy, affirmance is highly unlikely. From the insurance industry's perspective, the appeal will also be worth watching because it will offer the Supreme Court an opportunity to restrict the scope of federal nuisance law. While nuisance was once a small catch-all tort used to guarantee individuals the right of "quiet enjoyment" of their property, it has evolved into a vehicle for bringing all sorts of pollution and toxic tort claims. This form of litigation threatens to create a highly undesirable balkanization of environmental regulation and standards, between one jurisdiction and the next. As a result, it is possible that, in the context of the AEP appeal, the Supreme Court will provide guidance on the viability of nuisance claims in other environmental contexts.  

For additional information related to climate change or environmental risk issues, please contact William F. Stewart at 215.358.5125 or via email at wstewart@nldhlaw.com.