ELR Citation: ELR 20215
No(s). s. 05-5104, -5119 (2d Cir. Sep 21, 2009)

The Second Circuit reversed a lower court decision dismissing states', New York City's, and land trusts' public nuisance claims against six electric power corporations relating to the companies' ongoing contributions to climate change. The corporations own and operate fossil fuel-fired power plants in 20 states. Contrary to the lower court's finding, the nuisance claims do not present a nonjusticiable political question. The political implications of any decision involving possible limits on carbon emissions are important in the context of global warming, but not every case with political overtones is non-justiciable. It is error to equate a political question with a political case. The court also held that the states have parens patriae and Article III standing, in their quasi-sovereign and proprietary capacities, respectively, and that the trusts have Article III standing. Further, all parties have stated a claim under the federal common law of nuisance. The states allege that the corporations' emissions, by contributing to global warming, constitute a substantial and unreasonable interference with public rights in the plaintiffs’ jurisdictions, including, among other things, the right to public comfort and safety, the right to protection of vital natural resources and public property, and the right to use, enjoy, and preserve the aesthetic and ecological values of the natural world. These grievances suffice to allege an "unreasonable interference" with "public rights" within the meaning of Restatement (Second) of Torts §821B. New York City and the land trusts also plead an unreasonable interference with public rights. The fact that they are non-state parties does not preclude them from bringing claims sounding in the federal common law of nuisance. In addition, federal legislation does not displace the public nuisance claims. EPA has not yet determined that greenhouse gas emissions are CAA-regulated pollutants or regulated such emissions from stationary sources under the CAA. Nor does any other federal legislation "touching" on greenhouse gases displace the claims. Lastly, the discretionary function exception does not provide defendant TVA with immunity from suit.

[A prior decision in this litigation can be found at 35 ELR 20186]