Marten Law Group: Second Circuit Allows Federal Nuisance Claims for Global Warming to Proceed

Marten Law Group: Second Circuit Allows Federal Nuisance Claims for Global Warming to Proceed

“In a decision that may place even greater pressure on Congress to enact climate change legislation, the Second Circuit Court of Appeals has allowed a nuisance case against five of the nation's largest utilities to proceed because no federal climate change laws preempt the field," reports Steven Jones of the Marten Law Group. “Eight states and the City of New York brought federal common law nuisance claims against the utilities, based on their emissions of greenhouse gases. The circuit court's lengthy opinion in the case of Connecticut et al. v. American Electric Power Co. also affirmed that three environmental land trusts could press similar claims.”
 
“The plaintiffs' claims were initially dismissed in 2005, after a federal district court held that they raised political questions which were so intertwined with national domestic and foreign policy on global warming that they were non-justiciable,” explains Mr. Jones. “Reversing that decision, the Second Circuit held that while the claims had political implications, they remained justiciable in the federal courts and that the states, the city and the land trusts all had standing to pursue those claims. While acknowledging that the EPA or Congress could still issue regulations or adopt legislation that pre-empted the field, neither has done so. Therefore, the court held that the plaintiffs' claims were not displaced by other federal law or regulation.”
 
Jones provides the background of the litigation and then analyzes the legal issues that were heard on appeal. He looks at the political question doctrine, beginning with the seminal case of Baker v. Carr, and then reviews the issue as to whether the environmental trusts had standing to bring a federal common law nuisance claim. He concludes with an explanation as to whether the nuisance claim was pre-empted by federal statutes and regulations.
 
 
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