Climate Change: Public Nuisance Cases Clear Preliminary Hurdles

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SandBar 8:4, January, 2010 Recommended citation: Showalter, Stephanie, Climate Change: Public Nuisance Cases Clear Preliminary Hurdles , 8:4 SandBar 4 (2010). Climate Change: Public Nuisance Cases Clear Preliminary Hurdles During the past several years, a number of lawsuits have been filed against the oil and gas industry, large power companies, and automakers on public nuisance grounds. The plaintiffs claim the defendants’ activities, which involve or encourage the emission of carbon dioxide, contribute to global warming and therefore constitute a public nuisance. *Stephanie Showalter, J.D., M.S.E.L.* Litigation as a means of environmental protection is not new—Congress has rarely tackled an environmental problem on its own initiative. Litigation has traditionally been the driver of environmental law and policy in the United States. In the late 1960s and early 1970s, ordinary citizens, with the help of legal advocacy groups such as the Environmental Defense Fund, began filing lawsuits against companies who were polluting the air, water, and land around their homes, schools, and playgrounds. These lawsuits were grounded in common law concepts that were well known to judges. Homeowners with contaminated wells or land argued that they were due compensation because the company was negligent, for example, by failing to exercise reasonable care in the operation of its facility. Families with sick children argued that companies who discharged soot and toxic chemicals into the air were creating a nuisance that should be stopped. As the citizens’ victories mounted, awareness of the pollution problem grew. Public pressure for government action eventually resulted in a flurry of environmental lawmaking in Congress. In the late 1970s, Congress passed the Clean Water Act, the Clean Air Act, the National Environmental Policy Act, and a dozen other environmental statutes. Many of those statutes authorized ordinary citizens to challenge federal agency actions in court. Such oversight authority was unprecedented. The citizen suit provisions ensured that litigation would continue to be a powerful tool, albeit a polarizing one, for environmental protection. Public Nuisance The Restatement (Second) of Torts defines a public nuisance as “an unreasonable interference with a right common to the general public.”1 According to the Restatement, an activity unreasonably interferes with a public right if “the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience.”2 Over the years, courts have found a wide variety of activities to constitute public nuisances, including storing explosives in the middle of a city, keeping diseased animals, emitting extensive smoke, dust, and odors, and obstructing a public highway.3 A climate change lawsuit based on the theory of public nuisance has a number of challenges. First, what public rights are the defendants allegedly interfering with? The Environmental Protection Agency (EPA) recently announced that “greenhouse gases (GHGs) threaten the public health and welfare of the American people.”4 The EPA concluded that GHGs emissions, as the primary driver of the current climatic changes, may result, for example, in longer heat waves and increases in asthma attacks due to increased ozone pollution.5 So, there is the possibility that the emission of GHG could interfere with public health. But, are the defendants’ actions “unreasonable”? In public nuisance cases, an activity is considered unreasonable if the gravity of the harm to the public right outweighs the utility (benefit) of the activity.6 The question at trial will be whether the benefits derived from burning coal to generate electricity or manufacturing gasoline to power cars outweighs the potential harm to the American public from a warmer world. That question is much more complex and nuanced than whether the benefits derived from manufacturing explosives in a city center outweigh the risk of harm to that city’s residents. Standing For years, it was unclear whether the public nuisance cases brought in federal court would ever reach the stage where such issues are decided. As a threshold matter, all plaintiffs must establish that they have a right, or standing, to bring their claim in court. According to the U.S. Supreme Court, a plaintiff has standing when (1) she has suffered a particularized injury; (2) the injury is fairly traceable to the defendant’s actions; and (3) a favorable decision by the court will redress that injury.7 All three elements pose problems for climate change plaintiffs. First, because climate change is a global problem, every person on the planet is potentially harmed by GHG emissions making it difficult for a plaintiff to establish a “particularized injury.” Second, while there is solid scientific evidence that the Earth is warming, it is impossible to link the emissions from one region, let alone from one factory, to climate change impacts such as more heat waves or higher sea levels. Third, even if a court rules in the plaintiff’s favor and required emission reductions from power plants, for example, GHGs are still entering the atmosphere from thousands of other sources. The ruling would not prevent or redress the plaintiff’s injury. In 2007, the Supreme Court opened the door for public nuisance climate change cases when it determined that the State of Massachusetts had standing to pursue its claims against the EPA.8 The Court concluded that Massachusetts had suffered a particularized injury, the loss of state-owned coastal property due to sea level rise, which was caused by climate change. Even though EPA’s contribution to climate change (its failure to regulate carbon dioxide emissions from cars and trucks) was quite minimal, the agency’s lack of action still contributed to Massachusetts’ injury. Since the Court could order the EPA to take action that would reduce emissions thereby “slowing” global warming and reducing the risk of harm, a favorable ruling would redress at least some of Massachusetts’ injuries. The Supreme Court’s ruling on standing in Massachusetts v. EPA has changed the legal landscape for public nuisance litigants. Several cases originally dismissed by district court judges for lack of standing were recently given new life on appeal. In September in Connecticut v. AEP, the Second Circuit granted standing to eight states and the City of New York to pursue their claims again five fossil fuel-burning utilities. Then in October, the Fifth Circuit in Comer v. Murphy Oil ruled that private landowners along the Mississippi Gulf Coast had standing to pursue their claims against several oil and energy companies for damages related to Hurricane Katrina, which the plaintiffs argue was stronger due to global warming. Political Question Defendants in public nuisance climate change cases have argued that even when plaintiffs can establish standing their claims should be dismissed as “political questions,” which are precluded from judicial review. The political question doctrine “is designed to restrain the Judiciary from inappropriate interference in the business of the other branches of Government.”9 Courts have generally interpreted the doctrine quite narrowly, applying it primarily in cases seeking judicial rulings on whether states had the proper form of republican government guaranteed by the Constitution.10 Such cases are obviously unlikely to arise today, although some foreign policy issues, such as whether a state of war exists between the United States and another country, are also considered to be political questions.11 This defense has met with great success in the district courts. In Connecticut v. AEP, the District Court for the Southern District of New York dismissed the states’ claims because resolution of the issues would require “identification and balancing of economic, environmental, foreign policy, and national security interests” – decisions which are traditionally “consigned to the political branches, not the Judiciary.”12 In 2007, the District Court for the Northern District of California dismissed a public nuisance suit against the major automakers because it “would have an inextricable effect on interstate and foreign policy – issues constitutionally committed to the political branches of government.”13 Most recently, in September 2009, the Northern District dismissed the claims of an Inupiat Eskimo village against several oil and energy companies on similar grounds.14 The plaintiffs, however, have had much better luck on appeal. In October, the Second Circuit reversed the New York District Court concluding that, despite the “political overtones” of the global warming cases, nothing in the Constitution prevents the courts from hearing such disputes.15 The Fifth Circuit reached a similar conclusion in Comer.16 Conclusion While plaintiffs are beginning to clear some initial procedural hurdles, they are a long way from a final decision on the merits of their claims. The defendants are likely to appeal the recent circuit court decisions to the Supreme Court and, even if the cases proceed to trial in the district courts, it will be difficult for the plaintiffs, especially in Comer, to prove causation. Regardless of the eventual outcome of these cases, the actions of the courts will place additional pressure on Congress to take action on climate change and GHG emissions. Unless Congress acts soon, courts may take the lead in establishing emission standards. Endnotes 1. Restatement (Second) of Torts § 821B(1) (1979). 2. Id. § 821B(2)(a). 3. Id. § 821B, comment (b). 4. Press Release, Environmental Protection Agency, Greenhouse Gases Threaten Public Health and the Environment, Dec. 7, 2009. 5. Id. 6. See Restatement (Second) Torts § 826, comment (a). 7. See Massachusetts v. EPA, 549 U.S. 497, 517 (2007). 8. Id. 9. U.S. v. Munoz-Flores, 495 U.S. 385, 394 (1990). 10. Philip Weinberg, “Political Questions”: An Invasive Species Infecting the Courts, 19 Duke Envtl. L. & Pol’y F. 155, 157 (2008). 11. See id. 12. Connecticut v. American Electric Power Co., 406 F.Supp.2d 265, 274 (S.D.N.Y. 2005). 13. People of California v. General Motors Corp., 2007 WL 2726871 at *14 (N.D. Cal. Sept. 17, 2007). 14. Native Village of Kivalina v. ExxonMobil Corp., 2009 WL 3326113 (N.D. Cal. Sept. 30, 2009). 15. Connecticut v. American Elec. Power Co., Inc., 582 F.3d 309, 325 (2nd Cir. 2009). 16. Comer v. Murphy Oil USA, 585 F.3d 855, 870 (5th Cir. 2009).
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SandBar 8:4, January, 2010
Recommended citation: Showalter, Stephanie, Climate Change: Public Nuisance Cases Clear Preliminary Hurdles , 8:4 SandBar 4 (2010).

During the past several years, a number of lawsuits have been filed against the oil and gas industry, large power companies, and automakers on public nuisance grounds. The plaintiffs claim the defendants’ activities, which involve or encourage the emission of carbon dioxide, contribute to global warming and therefore constitute a public nuisance.

Stephanie Showalter, J.D., M.S.E.L.

Litigation as a means of environmental protection is not new—Congress has rarely tackled an environmental problem on its own initiative. Litigation has traditionally been the driver of environmental law and policy in the United States. In the late 1960s and early 1970s, ordinary citizens, with the help of legal advocacy groups such as the Environmental Defense Fund, began filing lawsuits against companies who were polluting the air, water, and land around their homes, schools, and playgrounds. These lawsuits were grounded in common law concepts that were well known to judges. Homeowners with contaminated wells or land argued that they were due compensation because the company was negligent, for example, by failing to exercise reasonable care in the operation of its facility. Families with sick children argued that companies who discharged soot and toxic chemicals into the air were creating a nuisance that should be stopped.
As the citizens’ victories mounted, awareness of the pollution problem grew. Public pressure for government action eventually resulted in a flurry of environmental lawmaking in Congress. In the late 1970s, Congress passed the Clean Water Act, the Clean Air Act, the National Environmental Policy Act, and a dozen other environmental statutes. Many of those statutes authorized ordinary citizens to challenge federal agency actions in court. Such oversight authority was unprecedented. The citizen suit provisions ensured that litigation would continue to be a powerful tool, albeit a polarizing one, for environmental protection.

Public Nuisance
The Restatement (Second) of Torts defines a public nuisance as “an unreasonable interference with a right common to the general public.”1 According to the Restatement, an activity unreasonably interferes with a public right if “the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience.”2 Over the years, courts have found a wide variety of activities to constitute public nuisances, including storing explosives in the middle of a city, keeping diseased animals, emitting extensive smoke, dust, and odors, and obstructing a public highway.3
A climate change lawsuit based on the theory of public nuisance has a number of challenges. First, what public rights are the defendants allegedly interfering with? The Environmental Protection Agency (EPA) recently announced that “greenhouse gases (GHGs) threaten the public health and welfare of the American people.”4 The EPA concluded that GHGs emissions, as the primary driver of the current climatic changes, may result, for example, in longer heat waves and increases in asthma attacks due to increased ozone pollution.5
So, there is the possibility that the emission of GHG could interfere with public health. But, are the defendants’ actions “unreasonable”? In public nuisance cases, an activity is considered unreasonable if the gravity of the harm to the public right outweighs the utility (benefit) of the activity.6 The question at trial will be whether the benefits derived from burning coal to generate electricity or manufacturing gasoline to power cars outweighs the potential harm to the American public from a warmer world. That question is much more complex and nuanced than whether the benefits derived from manufacturing explosives in a city center outweigh the risk of harm to that city’s residents.

Standing
For years, it was unclear whether the public nuisance cases brought in federal court would ever reach the stage where such issues are decided. As a threshold matter, all plaintiffs must establish that they have a right, or standing, to bring their claim in court. According to the U.S. Supreme Court, a plaintiff has standing when (1) she has suffered a particularized injury; (2) the injury is fairly traceable to the defendant’s actions; and (3) a favorable decision by the court will redress that injury.7 All three elements pose problems for climate change plaintiffs.
      First, because climate change is a global problem, every person on the planet is potentially harmed by GHG emissions making it difficult for a plaintiff to establish a “particularized injury.” Second, while there is solid scientific evidence that the Earth is warming, it is impossible to link the emissions from one region, let alone from one factory, to climate change impacts such as more heat waves or higher sea levels. Third, even if a court rules in the plaintiff’s favor and required emission reductions from power plants, for example, GHGs are still entering the atmosphere from thousands of other sources. The ruling would not prevent or redress the plaintiff’s injury.
      In 2007, the Supreme Court opened the door for public nuisance climate change cases when it determined that the State of Massachusetts had standing to pursue its claims against the EPA.8 The Court concluded that Massachusetts had suffered a particularized injury, the loss of state-owned coastal property due to sea level rise, which was caused by climate change. Even though EPA’s contribution to climate change (its failure to regulate carbon dioxide emissions from cars and trucks) was quite minimal, the agency’s lack of action still contributed to Massachusetts’ injury. Since the Court could order the EPA to take action that would reduce emissions thereby “slowing” global warming and reducing the risk of harm, a favorable ruling would redress at least some of Massachusetts’ injuries.
      The Supreme Court’s ruling on standing in Massachusetts v. EPA has changed the legal landscape for public nuisance litigants. Several cases originally dismissed by district court judges for lack of standing were recently given new life on appeal. In September in Connecticut v. AEP, the Second Circuit granted standing to eight states and the City of New York to pursue their claims again five fossil fuel-burning utilities. Then in October, the Fifth Circuit in Comer v. Murphy Oil ruled that private landowners along the Mississippi Gulf Coast had standing to pursue their claims against several oil and energy companies for damages related to Hurricane Katrina, which the plaintiffs argue was stronger due to global warming.

Political Question
Defendants in public nuisance climate change cases have argued that even when plaintiffs can establish standing their claims should be dismissed as “political questions,” which are precluded from judicial review. The political question doctrine “is designed to restrain the Judiciary from inappropriate interference in the business of the other branches of Government.”9 Courts have generally interpreted the doctrine quite narrowly, applying it primarily in cases seeking judicial rulings on whether states had the proper form of republican government guaranteed by the Constitution.10 Such cases are obviously unlikely to arise today, although some foreign policy issues, such as whether a state of war exists between the United States and another country, are also considered to be political questions.11
This defense has met with great success in the district courts. In Connecticut v. AEP, the District Court for the Southern District of New York dismissed the states’ claims because resolution of the issues would require “identification and balancing of economic, environmental, foreign policy, and national security interests” – decisions which are traditionally “consigned to the political branches, not the Judiciary.”12 In 2007, the District Court for the Northern District of California dismissed a public nuisance suit against the major automakers because it “would have an inextricable effect on interstate and foreign policy – issues constitutionally committed to the political branches of government.”13 Most recently, in September 2009, the Northern District dismissed the claims of an Inupiat Eskimo village against several oil and energy companies on similar grounds.14
The plaintiffs, however, have had much better luck on appeal. In October, the Second Circuit reversed the New York District Court concluding that, despite the “political overtones” of the global warming cases, nothing in the Constitution prevents the courts from hearing such disputes.15 The Fifth Circuit reached a similar conclusion in Comer.16

Conclusion
While plaintiffs are beginning to clear some initial procedural hurdles, they are a long way from a final decision on the merits of their claims. The defendants are likely to appeal the recent circuit court decisions to the Supreme Court and, even if the cases proceed to trial in the district courts, it will be difficult for the plaintiffs, especially in Comer, to prove causation. Regardless of the eventual outcome of these cases, the actions of the courts will place additional pressure on Congress to take action on climate change and GHG emissions. Unless Congress acts soon, courts may take the lead in establishing emission standards.

Endnotes
1.   Restatement (Second) of Torts § 821B(1) (1979).
2. Id. § 821B(2)(a).
3.   Id. § 821B, comment (b).
4.   Press Release, Environmental Protection Agency, Greenhouse Gases Threaten Public Health and the Environment, Dec. 7, 2009.
5.   Id.
6.   See Restatement (Second) Torts § 826, comment (a).
7.   See Massachusetts v. EPA, 549 U.S. 497, 517 (2007).
8.   Id.
9.   U.S. v. Munoz-Flores, 495 U.S. 385, 394 (1990).
10. Philip Weinberg, “Political Questions”: An Invasive Species Infecting the Courts, 19 Duke Envtl. L. & Pol’y F. 155, 157 (2008).
11. See id.
12. Connecticut v. American Electric Power Co., 406 F.Supp.2d 265, 274 (S.D.N.Y. 2005).
13. People of California v. General Motors Corp., 2007 WL 2726871 at *14 (N.D. Cal. Sept. 17, 2007).
14. Native Village of Kivalina v. ExxonMobil Corp., 2009 WL 3326113 (N.D. Cal. Sept. 30, 2009).
15. Connecticut v. American Elec. Power Co., Inc., 582 F.3d 309, 325 (2nd Cir. 2009).
16. Comer v. Murphy Oil USA, 585 F.3d 855, 870 (5th Cir. 2009).