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U.S. Supreme Court Will Review Climate Change Nuisance Case

December 2010

This is the latest in a series of alerts on the federal government's efforts to curb greenhouse gas emissions and on pending nuisance-based climate change litigation.

In our November 2010 Environmental Alert, we reported on the three nuisance-based climate change lawsuits that have been proceeding in the federal courts. On December 6, 2010, the U.S. Supreme Court granted certiorari to review one of those cases – American Electric Power Co. v. State of Connecticut (AEP).

The granting of the certiorari petition places before the Supreme Court the defendants' arguments that states and individuals have no standing to sue on a federal common law nuisance theory for injuries allegedly caused by global warming, that such claims present non-justiciable political questions, and that they are displaced by either the Clean Air Act or the U.S. Environmental Protection Agency's recent regulation of greenhouse gases. All of these arguments were rejected by the U.S. Court of Appeals for the 2nd Circuit last year (582 F.3d 309 (2nd Cir. 2009)). Justice Sonia Sotomayor was part of the 2nd Circuit panel that heard argument on the case, but did not participate in the decision because of her nomination to the Supreme Court. She also did not participate in the decision to grant certiorari.

As discussed more fully in our November 2010 Environmental Alert, AEP is one of the three cases nationally in which plaintiffs have sued energy producers on common law nuisance theories, seeking injunctive relief or compensatory damages for injuries allegedly resulting from the defendants' contribution to global warming. Whether the Supreme Court's grant of the certiorari petition portends reversal and dismissal of the plaintiffs' claims, or merely reflects the high level of governmental interest in the case, is unclear. Several states are among the plaintiffs in the case and the petitioners included the Tennessee Valley Authority and the Obama Administration.

Whatever the basis for the Supreme Court's decision, Justice Sotomayor recusing herself would make it more likely the defendants will prevail. Even if the defendants prevail, however, a narrow decision on any of the issues before the court may leave room for some climate change nuisance claims, brought either by other plaintiffs, on state law theories, or in a way that no displacement or preemption argument can be made.

Wilson Elser's Environmental and Toxic Tort Practice Team is closely monitoring developments in this matter and will be sure to keep you informed as this process proceeds. For more information, please contact William K. Enger at william.enger@wilsonelser.com or in our Los Angeles office at 213.330.8919 or in our White Plains, NY, office at 914.872.7497, or Michael J. Naughton at michael.naughton@wilsonelser.com or in our New Jersey office at 973.735.6032.

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