Public Nuisance Litigation
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It is hard to think of a more fitting example of a public nuisance than global warming. A public nuisance occurs when somebody unreasonably interferes with a right common to the general public, or does something that endangers or causes great injury to life, health or property. Emitting greenhouse gases into the air contributes to global warming, which in turn causes widespread harm to our environment, to our economy, and to our public health.
Relying on a federal public nuisance theory, and citing United States Supreme Court precedent that dates back one hundred years, the California Attorney General sued companies in the auto industry and the power industry for their contributions to global warming. These two industries are among the largest sources of greenhouse gases in the world. The case against the auto industry has been resolved; the case against the power industry is still pending.
- In the auto case, California filed a federal complaint
[PDF 971 kb / 15 pg] against six of the world’s largest car manufacturers to recover damages for the public nuisance that greenhouse gas emissions from their automobiles is causing in California. The companies produce vehicles that emit over 289 million metric tons of carbon dioxide in the United States each year. Carbon dioxide emissions from their products in this country account for over 20 percent of carbon dioxide emissions in the United States, and over 30 percent of emissions in California. California sought monetary compensation for the large-scale damages that the companies’ contributions to global warming are already causing in this state.
Invoking what is known as the “political question” doctrine, the trial court dismissed the complaint [PDF 100 kb / 24 pg], agreeing with the defendants that it is for Congress and the President, not the courts, to address the injuries that California is experiencing from global warming. We believe that trial court misapplied the political question doctrine; federal courts not only have the ability to provide a forum for the states’ grievances, they have a duty to do so, particularly while Congress and the President fail to act.
California appealed [PDF 295 kb / 79 pg] the auto case to the Ninth Circuit Court of Appeals. In the almost three years that the case had been pending, however, progress had been made in regulating vehicle GHG emissions, due in large part to the efforts of California. Accordingly, before the matter went to hearing, California filed a motion to dismiss [PDF 24 kb / 4 pg] its appeal. In June, 2009, the Ninth Circuit issued an order granting California's motion to dismiss in light of the actions taken by the federal government to reduce greenhouse gas emissions from motor vehicles. These federal actions include EPA's draft determination that greenhouse gases from motor vehicles threaten public health and welfare and must be regulated under the Clean Air Act and President Obama's directive to the U.S. Department of Transportation to establish improved national fuel economy standards in line with California's greenhouse gas automobile standards. While California continues to believe the trial court in the auto case erred, this recent progress hopefully will afford the state some relief against the effects of global warming to which the auto companies' emissions contribute. - In the power plant case, California joined seven other states and the City of New York in filing a federal complaint [PDF 1.3 mb / 60 pg] against five electric power corporations (and one of their subsidiaries) that are the largest emitters of carbon dioxide in the United States. Together these companies’ power plants emit approximately 650 million tons of carbon dioxide each year, which constitutes approximately ten percent of all human-caused carbon dioxide emissions in the United States. The complaint seeks a court order that enjoins each defendant to abate its contributions to the public nuisance by capping its emissions of carbon dioxide and then reducing those emissions by a specified percentage each year for at least ten years.
As in the auto case, the trial court in the power plant case dismissed the case on the ground that it presented a political question. The states appealed the trial court's decision. On September 21, 2009, the Second Court of Appeals issued an order [PDF 478 kb / 139 pg] reversing the trial court's decision. The Second Court held that: (1) the state's claims do not present political questions and can be decided by the courts; (2) the states have standing to bring their claims; and (3) the complaint adequately alleges claims under the federal common law of nuisance. The U.S. Supreme Court granted the power plant defendants' petition for certiorari (review) on December 6, 2010. The plaintiff states filed their merits brief [PDF 409 kb / 70 pg] on March 11, 2011. The Court will hear the matter in the Spring of 2011.