Environmental Update

Second Circuit Clears Path for Climate Change Public Nuisance Lawsuits

October 2, 2009

After more than three years of delay, on September 21, 2009 the U.S. Court of Appeals for the Second Circuit permitted to proceed a public nuisance lawsuit brought against five of the country’s largest fossil-fuel fired electric utility companies in district court.  The lawsuit (brought by eight states, the City of New York and three environmental groups) alleges that carbon dioxide emissions from these utilities’ power plants contribute to the public nuisance of global warming and seeks the abatement of such emissions via the judicial imposition of a cap on emissions that reduces over time.

 

Although this decision is likely to be appealed or reheard and will take years to resolve, it represents yet another tool to address climate change concerns, and it clearly paves the way for additional lawsuits against other greenhouse gas emitters.  Given the complexity of enforcing emission limits through individual court cases, the district court is without doubt hoping that either the federal EPA’s proposed greenhouse gas regulations or federal climate change legislation will come to fruition and resolve the controversy before it.

See the opinion in State of Connecticut, et al. v. American Electric Power Company Inc., et al

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