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Monday, September 26, 2011

Common-Law Climate Change Litigation After American Electric Power v. Connecticut

Robert Meltz
Legislative Attorney

Congressional inaction on climate change has led concerned parties to explore other ways to address climate change—including lawsuits seeking to establish climate change impacts as a common law nuisance.

The prospects for these common law suits are limited, owing in part to the unsuitability of private litigation for dealing with global problems like climate change. Recently, the outlook for federal common-law suits seeking injunctive relief vis-a-vis climate change became particularly dim. On June 20, 2011, the Supreme Court ruled in American Electric Power Co., Inc. v. Connecticut that given EPA’s Clean Air Act authority over greenhouse gas (GHG) emissions—affirmed by the Court a few years ago—the federal common law of nuisance in the area of climate change is “displaced.” Federal courts may not use federal common law to add their own judge-made GHG emission standards to those of EPA.

The displacement of federal common law by American Electric Power is only one of three threshold issues that have bedeviled lawsuits seeking to establish climate change as a common law nuisance. The standing inquiry requires a plaintiff in federal court to show actual or imminent injury caused by the defendant, and the likelihood that the injury will be redressed by the requested relief. Each of these factors can pose difficulties for the climate-change plaintiff. Similarly, the political question doctrine has led some courts to dismiss common-law climate change suits on the ground that the issue is better left with the political branches. Of course, where American Electric Power applies and the case must be dismissed on displacement grounds, standing and political question doctrine are now less important. 

American Electric Power
raises several questions. First, with federal common law displaced in the area of climate change, are state common law claims viable? Two threats to such claims are the possibility of preemption by the Clean Air Act (the sounder argument is against preemption), and the influence of the Supreme’s Court’s aversion to judge-made law in the climate change area so evident in American Electric Power. A second question is whether American Electric Power displaces climate-change-based federal common law actions when the remedy sought is monetary rather than injunctive. Finally, if Congress eliminates EPA authority over GHG emissions and is silent as to federal common law actions, does federal common law cease to be displaced so that such actions are again possible?

In addition to American Electric Power, there are two other active cases raising common law nuisance claims as to climate change – both involving coastal damage. In Village of Kivalina v. ExxonMobil Corp., a coastal Eskimo village is suing energy companies alleging that their GHG emissions have contributed to shoreline erosion, requiring relocation of the village. In Comer v. Murphy Oil, Gulf coast landowners are suing energy and chemical companies asserting that their GHG emissions intensified Hurricane Katrina, adding to plaintiffs’ property damage. Both of these cases raise the above-noted issue whether American Electric Power applies to actions seeking monetary damages.

A second common law theory recently has entered the fray. Since May 2011, either a suit or rulemaking petition has been filed in every state arguing that the respective state has a “public trust” duty to the atmosphere that requires it to address climate change. A suit has also been filed against the United States on the same ground.

Date of Report:
August 16, 2011
Number of Pages:
Order Number: R
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