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Appeals Court Rules CO2 Emission Reductions Can Be Sought Under Public Nuisance Common Law

In 2004, a group of eight states and New York City (collectively, "the states") sued six electric power companies that own and operate fossil fuel-fired power plants in 20 states. The complaint sought abatement of the power companies' ongoing contribution to a public nuisance, namely global warming, under federal common law, or alternatively under state common law. The states argued that global warming caused by increased CO2 emissions would cause future damage, and in fact is already causing damages. As an example of current damages, the states referred to decreased snow pack in California (a major source of that state's drinking water supply), warmer average temperatures, later fall freezes and earlier spring thaws, and the decrease in average snowfall and duration of snow cover on the ground in New England and California. The states argued that the power companies should be forced to cap, and then reduce, their CO2 emissions.

Also in 2004, a group of three land trusts separately sued the same six power companies. The land trusts own nature sanctuaries, outdoor research laboratories, wildlife preserves, recreation areas, and open space. In their complaint, the land trusts detailed how global warming will diminish or destroy the ecological value of specific properties in which they have an interest. The land trusts sought to require emission reductions on the basis that the power companies' CO2 emissions contribute to global warming. Similar to the states, the land trusts sought relief under the common law of nuisance.

In federal district court, the power companies moved to have the claims dismissed on a number of grounds. On September 22, 2005, the U.S. District Court for the Southern District of New York dismissed the case (Connecticut v. American Electric Power, 406 F. Supp.2d 265 [S.D. N.Y. 2005]). The district court held that the plaintiffs' claims presented a non-justicable political question. The district court believed that, in order to grant the relief sought by the states and land trusts, namely capping CO2 emissions, the court would have to: determine the appropriate level at which to cap the emissions and the appropriate percentage reduction; create a schedule to implement the reductions; balance the implications of its decision with the United States' ongoing climate change negotiations with other nations; and assess and measure available alternative energy resources. According to the district court, an initial policy determination regarding greenhouse gases was required before the court could address whether or not the power companies' CO2 emissions contributed to a public nuisance.

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