Climate Change Litigation

The ancient common tort of public nuisance is all the rage these days. Its resurgence is particularly notable in climate change and environmental litigation, where it seems to be the “tort of choice” for plaintiffs seeking breathtakingly broad relief from global warming and trans-border pollution. Traditionally limited to local concerns, the tort now aspires to planetary dimensions. Its expanding scope has now attracted the attention of the United States Supreme Court in American Electric Power v. Connecticut, which will be argued this Spring.  Read More »

The appeal of the dismissal of the Kivalina climate change case has drawn fire from several amicus curiae, but some of the most notable criticism comes from Richard Faulk and John Gray in their amicus brief for The American Chemistry Council, the American Coatings Association, and several other industry organizations.  In their brief, Faulk and Gray illustrate how the “standardless” liability for public nuisance sought by the plaintiffs creates a non-justiciable “political question” – and justifies the district court’s dismissal of the plaintiffs’ claim.  Read More »

It should come as no surprise that the next application of nuisance law would be climate change litigation.  Read More »

Executive Summary

This site contains information about the interplay between public nuisance theories and climate change litigation. (See, Global Warming and Public Nuisance Part I and Part II).  A new development in that area is the Second Circuit's 139-page opinion in State of Connecticut v. American Electric Power Co. Inc., 05-5104-cv (2d Cir., Sept. 21, 2009). In that case, the Federal Court of Appeals held state governments (in this case, Connecticut, California, Iowa, New Jersey, Rhode Island, Vermont, Wisconsin, and New York) can sue utilities under federal common law theories of public nuisance for contributing to global warming. This ruling reversed the district court's decision that such claims would interfere with the responsibilities of the political branches.  Read More »

Climate change lawsuits have acquired a new and complex vitality as a result of a Monday's decision from the Second Circuit Court of Appeals. The court reversed the dismissal of public nuisance claims filed by various states, municipalities and private entities against operators of coal-fired power plants. State of Connecticut v. American Electric Power Co.  Read More »

A reader of my last two entries describing articles on nuisance suits and global warming has suggested that one of the articles does not sufficiently respect the dangers of global warming on the merits of existing scientific evidence.  On one basic level, the response to this suggestion is easy:  whatever one thinks about the dangers of global warming, the point of my entries was to note that the judicial branch is not the appropriate forum to address the issue, as the case law to date has held.  On another level, however, the suggestion is useful because it highlights one reason why these court cases nevertheless keep getting filed:  because people frustrated with the responses from the governmental branches that are appropriate and equipped to address broad policy issues, i.e. Congress and the Executive Branch, start looking elsewhere.  The more critical someone thinks a policy problem is, the more likely they are to resort to any avenue for help, including the courts.     Read More »

Superficially, tort law and climate change seem perfectly matched.  Current cases seek to strike a "balance" reminiscent of earlier product liability cases, claiming that, as between the "victims" of climate change and the major emitters of greenhouse gases, the emission sources should bear the costs of climate change.  Allegedly, the sources are in a better position to absorb such costs and, unless liability is assessed, there is no incentive for the sources to discontinue their harmful emissions.  Read More »