On September 21, 2009, the Second Circuit Court of Appeals
issued a decision reversing the dismissal of a public nuisance claim brought by
eight states, New York City
In the case, the plaintiffs are seeking the abatement of the defendants’ “ongoing contributions to the public nuisance of global warming” by emitting carbon dioxide. Concluding that deciding the case would require the “identification and balancing of economic, environmental, foreign policy and national security interests,” a job properly left to the legislative and executive branches, the district court dismissed the case. The Second Circuit, on the other hand, found that “well-settled principles of tort and public nuisance law provide appropriate guidance to the district court in assessing Plaintiff’s claims and the federal courts are competent to deal with these issues.”
The Second Circuit also held that the federal common law of public nuisance had not been “displaced” by federal legislation (the Clean Air Act) addressing carbon dioxide emissions. While the EPA has authority to regulate greenhouse gas emissions under Massachusetts v. EPA (pdf), the Second Circuit found that because the EPA’s proposed findings do not regulate those emissions in a way that “speaks directly” to Plaintiff’s claims, the federal common law of public nuisance may still apply.
Put together, these two Second Circuit findings - that carbon emissions issues may be justiciable and are not necessarily pre-empted by current federal legislation - indicate that, without a comprehensive set of regulations governing greenhouse emissions including carbon dioxide, emitters bear the risk of tort claims brought under the common law. When viewed in that light, comprehensive regulation may hold new appeal to a wide array of business interests. While conventional wisdom now holds that comprehensive cap-and-trade legislation won’t likely come to pass until 2010 or later, this Second Circuit decision may inspire some traditional foes of regulation to push for federal legislation sooner rather than later.