Mission creep

The Second Circuit’s decision in Connecticut v. American Electric Power Company Inc., Docket Nos. 05-5104-cv, 05-5119-cv [link] is 139 pages long and could form the basis of an entire law school curriculum on all the issues it touches – standing, jurisdiction, the scope and nature of public nuisance law and so on.  My fellow bloggers here have done admirable jobs in identifying major questions raised by the decision and yet have only touched the surface.  For example, just one issue not yet addressed but raised in this suit goes to the Court’s holding that the private parties could sue as well, essentially because they were landowners.  Perhaps anticipating the point that there are many other landowners in the United States, the Court found that these landowners had alleged the special harm needed to pursue a public nuisance claim because they are nonprofit land trusts “with legally recognized missions to preserve ecologically sensitive land areas, and they own land threatened with significant harm (as a result of global warming)” and have opened their land for public use, so they “share similar features with public entities.”

There is nothing in public nuisance law that supports the conclusion that the special interest need to support an action by a private party for a public nuisance is a non-profit, quasi-public status, and the Second Circuit doesn’t cite any.  It’s also difficult to see how or why one would draw the line at this point – there are uses of property by for-profit entities that could be just as threatened with significant harm, and that could have greater ramifications to the public with or without access to the public on that piece of property.  

While this problem is just one small element of the decision, it points to a broader, common difficulty in finding these nuisance claims, whether asserted by a public or private plaintiff, justiciable.  Everyone on the face of the earth is potentially both a plaintiff and a defendant in this action.  Anyone who breathes is emitting carbon dioxide, and under the “contribute to an indivisible harm” theory accepted in this decision for allowing the action to go forward against six power companies, a potential defendant.  Any public entity, and any landowner (at least one who has some relationship to the public interest) is, under the reasoning of this Court, a potential plaintiff. 

When there is a world-wide issue, in which literally billions of parties could exist, and are both perpetrators and injured, this to me is a sign that the matter is not resolvable in an adjudicatory setting.  Courts have been established to make decisions about individual, one on one, disputes.  While class actions permit some broad based actions, they do so within carefully prescribed parameters.  Whether one views the commonality of perpetrators and injured as triggering questions about standing, political question or common law tort limitations, the bottom line is inappropriateness for resolution in court.

Exacerbating this problem of universality is the vague nature of the Restatement’s public nuisance test – an “unreasonable” interference, looking at factors that “include” whether the interference is “significant,” the conduct is proscribed or the conduct is “continuing.”  See Second Restatement of Torts, § 821B(1).  If this sort of language were the sole guide in a regulation to be administered by an executive agency, with no more concrete standards to give such language context, it would be so unpredictable and subjective that grave due process, void for vagueness concerns would arise.  Why aren’t same due process concerns triggered when a judge, not an agency, interprets the rule?  And given the vast number of potential parties, if the particular judge hearing one suit finds for the particular defendants in that case, an infinite repetition of suits can follow against other defendants or the same defendants with different plaintiffs, until the desired answer from one judge somewhere is obtained.

How do we get to this point?  One reason is the nature of the common law – natural progression is always expansion, not retraction.  So over time, a narrow cause of action expands and expands until it’s not recognizable and not workable in the confines of our judicial system.  Call it mission creep, or equate it to invasive algae – even if 99 out of 100 lakes are cleaned out, if 99 out of 100 courts don’t expand the action – over time, all it takes is for one forum to allow it to go forward, and thus it spreads.