The U.S. Supreme Court will review the Second Circuit’s decision allowing a public nuisance lawsuit to continue against coal-fired, electricity-generating utility companies for their greenhouse gas (GHG) emissions.

In State of Connecticut v. American Electric Power Company, 582 F.3d 309 (2d Cir. 2009), eight states, New York City, and three land trusts sued six coal-fired, electricity-generating utility companies for contributing to climate change and resulting property damage, increased medical costs, and other damages, which plaintiffs blamed on the utilities’ GHG emissions. The plaintiffs sought an injunction to require the utilities to cap and reduce their ongoing emissions of carbon dioxide.

The district court dismissed the complaint on political question and standing grounds. However, the Second Circuit Court of Appeals, with then Judge Sotomayor abstaining, reversed and found that under federal common law, the plaintiffs’ public nuisance claims against GHG emitters were not barred on political action grounds and that the plaintiffs had standing to pursue their claims. Significantly, the court held that the three private land trusts had standing because they could show injury different (in scope or kind) from the public at large.

The Second Circuit’s decision is significant because it would allow back-door challenges to GHG air emissions limits set by regulatory agencies. In essence, an appointed judge, rather than regulatory agencies charged with administering the Clean Air Act and protecting human health and the environment, would have the ability to reduce or cap GHG emissions for any emitter of GHG, not just utilities.

For more information on GHG nuisance lawsuits, please contact Bill Wagner or any member of Taft’s environmental practice group.