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, the California Attorney General sued companies in the power industry and the auto industry for their contributions to global warming. These two industries are among the largest sources of greenhouse gases in the world. Citing United States Supreme Court precedent that dates back one hundred years, the two cases seek judicial relief for the injuries from global warming that defendants’ emissions cause.
- In the power plant case, California joined seven other states and the City of New York in suing 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. See a copy of the power plant complaint.
[PDF 1.3 mb / 60 pg] - In the auto case, California sued 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. The complaint seeks monetary compensation for the large-scale damages that the companies’ contributions to global warming are already causing in California. See a copy of the auto complaint. [PDF 971 kb / 15 pg]
Invoking what is known as the “political question” doctrine, federal District Court judges dismissed the complaints in both cases after agreeing with the defendants that it is for Congress and the President, not the courts, to address the injuries that California and other states experience from global warming. See a copy of the power plant decision. [PDF 94 kb / 19 pg] See a copy of the auto decision. [PDF 100 kb / 24 pg] We believe that both courts misapplied the political question doctrine and should not have dismissed the cases. 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.
The states have appealed the power plant decision and are awaiting a ruling from the Second Circuit.
California appealed the District Court's decision in the auto case to the Ninth Circuit. Read a copy of our opening brief, [PDF 295 kb / 79 pg] the defendants' answer brief,
[PDF 3.23 mb / 79 pg] and our reply brief.
[PDF 1.68 mb / 44 pg] In June, 2009, the Ninth Circuit granted California's motion to dismiss [PDF 24 kb / 4 pg] the appeal in light of the actions taken by the federal government to reduce greenhouse gas emissions from motor vehicles, including 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 higher national fuel efficiency standards in line with California's greenhouse gas automobile standards. See Improved Fuel Economy Standards. While California continues to believe the district court erred in dismissing the complaint, this recent progress hopefully will afford the state some relief against the effects of global warming to which the auto companies' emissions contribute.