Two Federal Courts of Appeal Permit Greenhouse Gas Litigation to Proceed

December 8, 2009
Client Alert Newsletter December 2009

The U.S. Courts of Appeal for the Second and Fifth Circuits recently issued decisions permitting governmental and private plaintiffs to assert nuisance and related tort claims against sources of greenhouse gas ("GHG") emissions. The Second Circuit case, Connecticut v. American Electric Power, involved federal common law nuisance claims by eight states, New York City and three private not-for-profit land trusts against five electric power producers. The plaintiffs sought an injunction to abate the alleged nuisance. The district court dismissed the complaint on political question grounds. The Second Circuit reversed, concluding that the case was not barred by the political question doctrine because resolution of the case required only adjudication of whether GHG emissions from a limited number of coal-fired electric plants caused a public nuisance, and it therefore presented an issue that was constitutionally committed to the judiciary and that was subject to manageable common law tort standards. The court further concluded that the plaintiffs had standing to assert their nuisance claims because they alleged concrete injuries resulting from global warming, that the defendants' emissions contributed to global warming and that the requested injunction would provide some relief. Next, the court concluded that all the plaintiffs, including the private land trusts, had stated a claim for public nuisance because they alleged that the defendants had unreasonably interfered with public rights. Finally, the Second Circuit held that federal common law was not displaced by federal statute or regulation unless and until Congress or the Executive Branch regulates stationary sources of GHG emissions.

In the Fifth Circuit case, Comer v. Murphy Oil, a class of private plaintiffs owning land along the Gulf Coast sought monetary damages from a number of energy and petrochemical companies, asserting Mississippi common law claims for public and private nuisance, trespass, negligence, unjust enrichment, fraudulent misrepresentation, and civil conspiracy. The district court dismissed the complaint under the standing and political question doctrines. The Fifth Circuit reversed in part. Dealing first with standing, the Fifth Circuit rejected the defendants' argument that the injuries alleged in the complaint were not fairly traceable to the defendants' GHG gas emissions, concluding that it was sufficient that the plaintiffs alleged that the defendants’ conduct contributed to the injuries. Thus, because the plaintiffs alleged that the defendants’ GHG emissions contributed to global warming, which in turn contributed to rising sea levels, the severity of Hurricane Katrina and ultimately property damage suffered by the plaintiffs, the Fifth Circuit concluded that the plaintiffs had standing as to their nuisance, trespass and negligence claims. However, the court concluded that the plaintiffs lacked standing for their remaining claims, which raised only a generalized grievance related to the alleged dissemination of false statements about global warming. Finally, the Fifth Circuit held that the political question doctrine was inapplicable because "ordinary tort suits" like this one should be resolved by the courts, particularly where plaintiffs seek damages, not injunctive relief.

Although these decisions may represent a sea change in the receptivity of the federal courts to climate change litigation, the plaintiffs in both cases face significant obstacles on the merits, particularly proving that the defendants' GHG emissions were the proximate cause of the injuries alleged. Further, federal and state common law may be displaced or preempted by future climate change legislation by Congress or regulatory action by the U.S. Environmental Protection Agency.