Public nuisance makes a comeback in global warming suits

John O'Brien Oct. 29, 2009, 3:18pm



WASHINGTON (Legal Newsline) - University of Maryland law professor Donald Gifford said Wednesday that it is time to start paying attention to public nuisance global warming lawsuits again.

Gifford and Richard Faulk, of Gardere Wynne Sewell's Houston office, spoke about the possibility of climate change as the next big mass tort at the U.S. Chamber Institute for Legal Reform Summit, noting two recent decisions that could have huge effects.

"Many in the business community kind of went to sleep, thinking public nuisance would revert back to its obscure status," Faulk said. "If they were asleep, I think the last six weeks have woken people up."

The business industry was overjoyed with a ruling last year by the Rhode Island Supreme Court that the former manufacturers of lead paint were not guilty of creating a public nuisance, but the U.S. Court of Appeals for the Second Circuit ruled in September that a trial court improperly dismissed a lawsuit filed by eight states and the City of New York against five major power companies.

The 139-page ruling came after more than two years of waiting.

"As we have explained... the district court erred in dismissing the two complaints on the ground that they presented non-justiciable political questions," the ruling says.

"The states have parens patriae and Article III standing, in their quasi-sovereign and proprietary capacities respectively, and New York City and the Trusts have Article III standing.

"All parties have stated a claim under the federal common law of nuisance, which we find is grounded in the definition of 'public nuisance' found in the Restatement (Second) of Torts."

California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont and Wisconsin filed the lawsuit in July 2004 against American Electric Power, Southern Company, Tennessee Valley Authority, Xcel Energy and Cinergy.

The suit seeks only injunctive relief.

Following the Second Circuit's lead, the Fifth Circuit reinstated a lawsuit filed by Hurricane Katrina victims against defendants they say contributed to global warming, resulting in a rise in sea levels that powered Katrina.

That suit seeks compensatory and punitive damages. The district court had ruled the plaintiffs did not have standing to bring their claims, and that the claims presented non-justiciable political questions.

The court affirmed the dismissal of unjust enrichment, fraudulent misrepresentation and civil conspiracy claims.

"(T)he defendants begin with an assumption they cannot support, that the adjudication of Plaintiffs' claims will require the district court to fix and impose future emission standards upon defendants and all other emitters," the decision says.

"Then... the defendants proclaim that it would be 'impossible' for a court to perform such an obviously legislative or regulatory task so that the case must present a non-justiciable political question.

"The defendants have failed to show how any of the issues inherent in the plaintiffs' nuisance, trespass and negligence claims have been committed by the Constitution or federal laws 'wholly and indivisibly' to a federal branch."

Faulk wondered how any defendants can be held liable for global warming.

"Every living thing in the world emits greenhouse gases," he said. "Every business, volcanoes, a fracture in the earth emit greenhouse gases.

"Courts have found that simply contributing is enough. There's a serious problem with that, and it needs to be raised in the next rounds of motions in these cases."

It's not all bad news, though, for defendants. The City of Kivalina in Alaska sued 24 companies for allegedly contributing to the global warming that is eroding the town. The city has a few hundred residents who are looking for the defendants to financially provide for their relocation.

A federal court in California recently sided with the defendants, though, differing from the Second Circuit's decision.

"Though alleging that defendants are responsible for a 'substantial portion' of greenhouse gas emissions, plaintiffs also acknowledge that virtually everyone on Earth is responsible on some level for contributing to such emissions," Judge Saundra Brown Armstrong wrote.

"Yet, by pressing this lawsuit, plaintiffs are in effect asking this court to make a political judgment that the two dozen defendants named in this action should be the only ones to bear the cost of contributing to global warming."

Gifford added that if global warming exists, everyone is affected.

"What gives the State the right to sue when the individuals of Massachusetts and Connecticut are no more affected than those in the State of Texas?" he said.

From Legal Newsline: Reach John O'Brien by e-mail at Legal Newsline is owned by the ILR.

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