U.S. Court Allows Climate Change Nuisance Claim

Released December 7, 2009

Recently, two U.S. Courts of Appeals ruled that U.S. federal courts can decide that private emitters of greenhouse gases (GHGs) are liable for creating a public nuisance. The 2nd and 5th Circuits, which encompass New York, Vermont, Connecticut, (2nd) Texas, Louisiana, and Mississippi (5th), have heard cases in which electric utilities and companies were brought to court under charges that their GHGs contributed to global warming. The decisions suggest a greater willingness to consider common law climate change claims and could result in an increase of public nuisance claims against large emitters of GHGs.

Most of the defendants to date have been automobile manufacturers and power and utility companies, but metalcasters should be aware that any large GHG emitting facility may be targeted. Nuisance claims are those that allege that the actions of the defendant have unreasonably interfered with the plaintiff’s use and enjoyment of their property. Given the global reach of GHGs, an industrial facility anywhere in the country may be named as a defendant in similar litigation.

The Court of Appeals decision comes at the same time as information about companies and their emissions is becoming more readily available. Under a final rule (http://www.epa.gov/climatechange/emissions/ghgrulemaking.html) recently issued by U.S. Environmental Protection Agency (EPA), thousands of industrial companies will be required to report their GHG emissions starting in 2010. Plaintiffs may eventually use this information to help select targets for future litigation. The decision, particularly if it is followed by an influx of climate change nuisance claims may pressure Congress or the EPA to develop a comprehensive regulation.

For more information, contact Alicia Oman at the Metalcasters Alliance for Government Affairs Washington Office at ao@wafed.com or 202/842-4864.