On December 6, 2010, the Supreme Court of the United States granted review of a federal appellate court decision allowing a suit seeking to require utilities to redress climate change allegedly resulting from greenhouse gas (GHG) emissions. The Supreme Court’s decision is important because if the appellate court decision stands, it could open the door nationwide to suits by states, municipalities and even private plaintiffs against GHG emitters.
The United States Court of Appeals for the Second Circuit allowed the suit to go forward in a New York federal district court based on the federal “public nuisance” doctrine. See Connecticut v. American Electric Power Co., 582 F.3d 309 (2d Cir. 2009). Public nuisance suits provide a powerful remedy requiring defendants to stop conduct that is damaging the public. A public nuisance typically involves conduct that significantly interferes with public health, safety, peace, comfort or convenience. The Second Circuit decision was remarkable because it allowed plaintiffs to sue GHG emitters on the grounds that their emissions caused substantial contributions to elevated levels of carbon dioxide in the atmosphere and global warming.
How Your Business May Be Affected
If the Supreme Court allows the appellate decision to stand, large GHG emitters are vulnerable to public nuisance suits based on climate change. This includes power plants, refineries, cement kilns, fleet vehicle operators, landfills, airports and potentially even operators of commercial buildings or industrial properties within large boilers.
If the suits are successful, GHG emitters may be forced to reduce GHG emissions by curtailing operations or implementing new control technologies. States and environmentalists are likely to use the suits to force settlements in which GHG emitters agree to reductions in exchange for dismissal of the lawsuits.
Due to the makeup of this Court and the current challenges to EPA’s authority to regulate GHGs from stationary sources, it is difficult to predict which way the Supreme Court will rule, but it is clear that absent decisive action and direction from Congress, business can expect continued uncertainty and piecemeal judicial decisions regarding GHGs.
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