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Tuesday, May 31, 2011

Litigation Seeking to Establish Climate Change Impacts as a Common Law Nuisance

Robert Meltz
Legislative Attorney

Congressional inaction on climate change has led various entities to pursue climate change measures off Capitol Hill. Either in hopes of realizing substantive measures or to pressure Congress to act, such entities have looked to international forums, treaty negotiations, Environmental Protection Agency (EPA) action under the Clean Air Act, state and regional efforts, and—the topic here—lawsuits seeking to establish climate change impacts as a common law nuisance. If congressional efforts to block or delay EPA from addressing greenhouse gas (GHG) emissions are successful, that likely will give added importance to such nuisance suits. As background, a private nuisance is a substantial and unreasonable invasion of another’s interest in the private use and enjoyment of land, without involving trespass; a public nuisance is an unreasonable interference with a right common to the general public.

In litigating a climate-change/nuisance suit, several issues arise at the outset and, if resolved against the plaintiff, prevent a claim from proceeding. First, there is the question whether the federal common law of nuisance has been displaced yet by EPA regulation of GHG emissions under the Clean Air Act. A second threshold issue is standing to sue, which asks whether a given party is an appropriate one to invoke the jurisdiction of a federal court. As developed by the Supreme Court, the Constitution requires that for a plaintiff to have standing in federal court, he/she must show injury in fact, that the injury was caused by the defendant, and that the remedy sought likely will ameliorate the injury. Suits seeking relief based on climate change claims have run into difficulty with one or more of these requirements. A third threshold issue is the political question doctrine, which is designed to restrain the judiciary from inappropriately interfering in matters reposed in the other branches of government. For example, the defendants in one case argued that one indicium of a political question—the Constitution’s textual commitment of the issue to the executive or legislative branch—is displayed by climate change because using a nuisance case to reduce U.S. CO
2 emissions undermines the President’s constitutional authority to manage foreign relations—in particular, to induce other nations to reduce their CO2 emissions.

There are five common law/nuisance suits addressing climate change now or formerly active. Of the three no longer active, none were successful. Of the two still-active cases, one has recently leaped to center stage because the Supreme Court agreed to hear it. In Connecticut v. American Electric Power Co., Inc., eight states sued five utility companies alleged to be emitting the most GHGs in the nation through their coal-fired electric power plants. Following a Second Circuit decision, the Supreme Court agreed on December 6, 2010, to resolve threshold issues in this case.

The other active case is Native Village of Kivalina v. ExxonMobil Corp., in which a coastal Eskimo village sued 24 oil and energy companies. Plaintiffs claim that the large quantities of GHGs defendants emit contribute to climate change, which in turn has caused coastal ice to melt, which in turn has caused coastal erosion that will require relocating the village. This case is pending before the Ninth Circuit, where it has been stayed pending the Supreme Court’s ruling in Connecticut.

In early May 2011, the nuisance cases above were joined by 10 lawsuits (with more promised) seeking to address climate change by an entirely different common law theory: public trust doctrine. Given their recent filing, there have been no developments in these cases as yet.

Date of Report: May 9, 2011
Number of Pages: 15
Order Number: R41496
Price: $29.95

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