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Climate Change/Environmental 10/16/2009 9:36:09 AM EST Jenner & Block: Federal Appeals Court - Greenhouse Gas Emitters Can Be Subject to Federal Common Law Nuisance Liability Attorneys, Jenner & Block LLP “In a ground-breaking decision for global warming litigation, the U.S. Court of Appeals for the Second Circuit held that eight states, New York City, and three land trusts could bring public nuisance claims against owners of some of the largest U.S. electric power plants, alleging that the plants' greenhouse gas (GHG) emissions contribute to global warming,” report the authors. “Plaintiffs seek to cap and reduce these coal-fired power plants' carbon dioxide (CO2) emissions, under principles of the federal common law of nuisance. Overturning the lower court's decision, the appellate court ruled on September 21, 2009, that plaintiffs' claims were justiciable (i.e., within the federal judiciary's power to decide), that each plaintiff had standing to sue, that all plaintiffs stated a claim upon which relief could be granted, and that the federal common law cause of action was not displaced by federal statutes or regulation. Connecticut v. American Electric Power Co.”
The authors discuss the two complaints that were filed by the plaintiff groups in this litigation and explain the original ruling of the U.S. District Court for the Southern District of New York. The authors then analyze in detail the ruling of the Second Circuit. They examine the political question doctrine, the issue as to whether the district court properly dismissed the action on the basis that plaintiffs' claims raised a non-justiciable political question. They next explain why the various plaintiffs, the states, the city, and the private land trusts, were found to have standing to bring the action. The article then discusses the federal common law nuisance claims of the plaintiffs and the argument that the nuisance claims were preempted by federal law.
The authors conclude by examining the decision of the Second Circuit in relation to other global warming litigation. Three other cases, in Mississippi, the District of Columbia, and California, are summarized.
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