Document Type

Article

Publication Date

2005

Abstract

On July 21, 2004, eight State Attorneys General and the City of New York brought suit in federal district court in the Southern District of New York, seeking to adjudicate the issue of global warming as a public nuisance. Six large electric power producers were named as defendants. The complaint filed in Connecticut v. American Electric Power Co.,1 as the action is styled, alleges that emissions of greenhouse gases from the defendants' plants, in particular carbon dioxide (C02), are contributing to global warming. Count I claims that these greenhouse gas emissions are an actionable public nuisance governed by federal common law.2 This count, if it states a cause of action, should establish subject matter jurisdiction in the federal district court, based on the presence of a federal question.3 Count II pleads, apparently in the alternative, that the emissions are an actionable public nuisance under state nuisance law.4 Subject matter jurisdiction over this count is based on supplemental federal jurisdiction.5 Under both counts, the plaintiffs seek injunctive relief directing the defendants to abate their emissions of greenhouse gases; there is no demand for damages.

The use of litigation to establish environmental policy is not new. It has featured prominently in the history of American public law, and has produced results that are mixed, or at least controversial. I leave for another day the question whether, as a policy matter, it is a good idea to ask the courts to resolve issues like global climate change. Rather, my focus here is on some of the challenging legal questions raised by the suit. In particular, I will discuss four questions: (1) whether State AGs have standing to bring such a suit; (2) whether such a suit is in fact governed by federal common law, as opposed to state common law; (3) whether the suit is impliedly preempted by the commitment of foreign policy to the political branches of the federal government; and (4) what substantive legal standard of nuisance liability should govern the suit. I will discuss some of the factors that either will or should bear on the resolution of these questions, and speculate a bit on the likely response by the courts.

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