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Attractive nuisance: Can federal courts help tackle global warming?

Here the 2nd Circuit relied heavily on a little-known, century-old Supreme Court case called Georgia v. Tennessee Copper Co. The suit began in the early 1900s, when the State of Georgia sued two copper companies in Tennessee for emitting noxious emissions that destroyed plants and crops in Georgia. No less a figure than Justice Oliver Wendell Holmes found the copper companies liable for the nuisance of air pollution and ordered the companies to reduce their emissions. When the companies failed to fully comply, the court set emissions limits, with monitoring requirements and costs divided between the defendants. In other words, the court established the same sort of regulatory regime Congress would introduce 50 years later with the 1970 Clean Air Act.

Today, federal courts dealing with global-warming lawsuits are faced with the same dilemma as the Supreme Court was in Tennessee Copper, only on a much larger scale. Air pollution from one state is causing harm to other states (indeed, to the whole world). Despite the encouraging rulings from the courts of appeals, however, today’s global-warming nuisance suits face an uncertain future. Last month, the 5th Circuit announced a rehearing en banc for the Katrina victims’ lawsuit, meaning that all of the court’s judges will sit and rehear the case. The Alaskan villagers, who lost before the district court, now move to the 9th Circuit Court of Appeals. One or more of these plaintiffs may well wind up before the Supreme Court.

And there a conservative majority may be more sympathetic to the fossil-fuel industry, which argues that the courts should butt out because Washington is doing plenty about global warming. The industry’s Exhibit A is in fact another court case: The Supreme Court’s 2007 ruling in Massachusetts v. EPA, which held that greenhouse gases are air pollutants within the meaning of the Clean Air Act, allowing the EPA to regulate the gases directly.

But the 2nd Circuit in September rejected the argument that this displaced the nuisance suits, noting that the EPA had not yet used the Clean Air Act to regulate greenhouse gases. The court acknowledged that this could change if and when the Obama administration gets moving.

Judge Peter Hall, the author of the 2nd Circuit’s opinion, conceded the same point in a recent speech at Georgetown Law School. The courts would happily get out of the business of hearing nuisance suits about climate change, he said, if the EPA does its job in restricting these emissions—or better yet, if Congress passes a comprehensive climate bill. In the meantime, however, Judge Hall added that judges have the responsibility to take seriously nuisance lawsuits brought by property owners facing strengthening hurricanes and rising sea levels. These lawsuits, he said, probably provide a backstop and “some small impetus” to stonewalling lawmakers. It’s a trade-off: Polluters can either get out of the way of Congress or face the, well, nuisance of lawsuits for decades to come.

This story was originally produced by Slate for the Climate Desk collaboration.

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    HONESTLY-2 THINGS we forget one is all planets temps have risen due to coming of 3600 yr old orbit of Planet X (Nibiru) 2nd is people to many people doing & trying to live like North American’s-if we would incorp at least we could give mother Earth a chance!

  • ASC

    Thanks Need To Know for publishing this article,

    The eventual court ruling of public nuisance, and I usually like to add criminal negligence seems to be a great chance to prevent a further build up of the global greenhouse blanket. The recent EPA endangerment finding on GHG’s is a great step, but considering that 30 years after the clean air act was implemented we still have coal fired power plants in violation, I don’t expect this finding to lower CO2 emissions.

    However, when properly presented with the evidence, the Supreme Court of the USA (or any legit court system) would easily be able to establish a cause and effect relationship between the emissions of fossil fuel and the global environmental and humanitarian disaster that continues to show itself. Perhaps naively, I expect that within 10-20 years fossil fuel companies, and perhaps even a few auto companies (think GMC lawsuit against Calif. electric car mandate) will be coughing up lots of cash to fund massive reductions in GHG’s as a result of a Supreme Court ruling on criminal negligence and public nuisance.

    This legal situation could play out the same way as when North American tobacco companies had to cough (no pun intended) up lots of cash to every national/state/ provincial government in North America to pay for the public nuisance, and criminally negligent activities that were perpetrated on their watch. Remember how tobacco companies tried to cover up the cause and effect relationship between smoking, and various health problems? I am willing to bet that the major fossil fuel players have funded their very own climate analyses and covered up the results as they showed fatal consequences for various earth systems. If true, this would be a rather embarrassing situation for the likes of Exxon, Imperial, BP, Shell, EnCana, Massey Energy.

    It would be great if Need to Know would run a few episodes on these lawsuits. Keep up the great journalism;

    I am still getting over the cancellation of NOW, and Bill Moyers – PBS….you bastards!

    Best regards,