Climate Change Nuisance Claims

In late September 2009, the Second Circuit Court of Appeals ruled that U.S. federal courts can decide common law actions that allege private emitters of greenhouse gases (GHGs) are liable for creating a public nuisance. This landmark decision, State of Connecticut v. American Electric Power Company Inc., overturns an earlier 2005 judgment, which had dismissed the case on the grounds that it presented a non- justiciable political question – in other words, a question that politicians rather than the courts should decide. This decision suggests a greater willingness by a least one U.S. court to consider common law climate change claims and could therefore result in an increase of public nuisance claims against large emitters of GHGs.

The public nuisance action was brought by two groups of plaintiffs: eight U.S. states and the City of New York (the States) and three land trusts (the Trusts), against six electric power companies that own and operate fossil-fired plants in 20 U.S. states (the Defendants). At the time the action was filed, the Defendants were responsible for approximately 25% of the U.S. power sector’s carbon dioxide (CO2) emissions and 10% of all annual CO2 emissions from human activities in the U.S. To mitigate this impact, the action seeks to hold Defendants jointly and severally liable for creating, contributing to or maintaining the alleged public nuisance of climate change. The State plaintiffs seeks action from each Defendant to abate the nuisance by having them cap their CO2 emissions and then by reducing these emissions by a specified percentage each year for a minimum of 10 years.

Although plaintiffs will be challenged to prove that the emitting companies caused the alleged public nuisance, it nonetheless further opens the floodgates within the sphere of climate change and liability.

In Canada, a court recently found that the system of parliamentary accountability established by the federal Kyoto Protocol Implementation Act, which requires that the Minister of the Environment prepare and implement an annual Climate Change Plan, was not open to judicial review.

It ain't over 'til the fat lady sings.