Climate Change Public Nuisance Cases Heat Up

The U.S. Court of Appeals for the Fifth Circuit has ruled that 14 individuals who filed a class-action lawsuit against insurance, coal, and chemical companies can seek relief for property damages resulting from Hurricane Katrina. The court cited a Sept. 21 ruling, Connecticut v. AEP, by a federal court that allowed plaintiffs to sue coal-burning utilities for creating a “public nuisance” through their emissions of climate-warming greenhouse gases. It is the second decision to allow a climate change–related public nuisance lawsuit to move past the pleading stage.

The Fifth Circuit court in New Orleans ruled (PDF) in Comer v. Murphy Oil on Oct. 16 that plaintiffs—residents and owners of lands and property along the Mississippi Gulf Coast—could sue defendants’ operation of energy, fossil fuels, and chemical industries in the U.S. for causing the emission of greenhouse gases that contributed to global warming.

The plaintiffs had claimed in a class action suit filed in the U.S. District Court for the Southern District of Mississippi that the defendants had contributed to the increase in global surface air and water temperatures, and that in turn had caused a rise in sea levels and added to the ferocity of Hurricane Katrina.

The district court dismissed the plaintiffs’ claims, saying that they lacked the grounds to assert their claims, and that their claims presented a “nonjusticiable” political question.

On Oct. 16, however, the appellate court concluded that the plaintiffs could assert “their public and private nuisance, trespass, and negligence claims,” and that none of these claims presented nonjusticiable political questions. The court cited the Second Circuit Court of Appeals’ 139-page decision (PDF) in Connecticut v. AEP made barely a month ago.

In that case, California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont, Wisconsin, and New York City sued six companies, including American Electric Power (AEP) and a subsidiary, Southern Corp., the Tennessee Valley Authority (TVA), Xcel Energy, and Cinergy Corp. As in a separate suit brought by three land trusts, the states and New York City alleged that by owning and operating fossil-fuelled power plants in 20 states, the corporations had contributed to the public nuisance of global warming.

“Although we arrived at our own decision independently, the Second Circuit’s reasoning [in Connecticut v. AEP] is fully consistent with ours, particularly in its careful analysis of whether the case requires the court to address any specific issue that is constitutionally committed to another branch of government,” Judge James Dennis wrote for three-judge panel in Comer v. Murphy Oil Co. on Oct. 16.

“Presumably, the defendants in Connecticut and Comer will seek rehearing by a full panel at their respective circuit courts and, failing that, will file for a writ of certiorari from the Supreme Court,” write Craig Gannett and Lauren Giles Wishnie for law firm Davis Wright Tremaine LLP.

Meanwhile on Oct. 16, a judge for the U.S. District Court for the Northern District of California issued a contrary ruling (PDF), dismissing a much-watched climate change-related public nuisance suit brought by the Alaskan coastal town of Kivalina against 24 energy firms and utilities.

Judge Saundra Brown Armstrong dismissed the Native Village of Kivalina’s case, Alaska v. ExxonMobil, et al., on the grounds that it raised a nonjusticiable political question. The decision also spells a rejection of  the Second Circuit court’s analysis in Connecticut v. AEP.

The Native Village of Kivalina (photo), populated by 399 residents, is built on a 1.9 square mile area on the tip of a barrier island. The village filed suit against the energy companies, attempting to recover at least $400 million in damages for public nuisance related to emissions of greenhouse gases. The villagers alleged that global warming caused melting of Arctic sea ice, which had formerly protected the village from winter storms, and that the increased pace of the melting ice has caused erosion.

“Based on the judiciary’s history of addressing ‘new and complex problems,’ including those concerning environmental pollution, the [Second Circuit] court concluded that ‘Well-settled principles of tort and public nuisance law provide appropriate guidance to the district court in assessing Plaintiffs’ claims and federal courts are competent to deal with these issues’ such that their global warming concerns can ‘be addressed through principled adjudication,’” Judge Saundra Brown Armstrong wrote. “This Court is not so sanguine. While such principles may provide sufficient guidance in some novel cases, this is not one of them.”

Sources: U.S. Court of Appeals for the Fifth Circuit, U.S. Court of Appeals for Second Circuit, Davis Wright Tremaine LLP,, POWERnews

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