The Misuse of Public Nuisance Law to Address Climate Change

The Misuse of Public Nuisance Law to Address Climate Change

By James W. Shelson

N THE 1990s, numerous “state attorney generals and numerous private

contingent fee attorneys joined forces to sue tobacco companies in what is undoubtedly the nation’s most famous and successful ‘social policy tort’ lawsuit. As a result of their ability to secure changes in the tobacco industry’s practices that had long alluded state and federal legislators, private and public lawyers have continued to attempt to recapture that magic over the last decade . . . . Their social policy tort-of-choice has been public nuisance – an ill-defined tort that can be molded and shaped by lawyers.”1

More recently, plaintiffs have attempted to use public nuisance law in several recent cases to address climate change. Their efforts have met with mixed results because courts have reached different conclusions regarding standing, the political question doctrine, and preemption, the three core legal issues in these cases. The Second Circuit has allowed plaintiffs’ claims to proceed,2 the Fourth Circuit3 and two federal district courts in California4 have not, and

1 John Gray, The Use of Public Nuisance Suites to Address Climate Change: Are These Really “Ordinary Tort Cases”?, 2010 WL 1616860 (Aspatore, April 2010). 2 Connecticut v. American Elec. Power Co., Inc., 582 F.3d 309 (2nd Cir. 2009). 3 North Carolina v. Tennessee Valley Auth., 615 F.3d 291 (4th Cir. 2010). 4 Native Village of Kivalina v. ExxonMobil Corp., 663 F. Supp.2d 863 (N.D. Cal. 2009);

IADC Member Jim Shelson is a partner and practice group coordinator in the general litigation group of the Jackson, Mississippi office of Phelps Dunbar. Mr. Shelson

has diverse litigation and trial practice that includes toxic torts, business torts, consumer finance, coverage disputes and products liability. He is the co-author of “Mississippi Chancery Practice”. Mr. Shelson is licensed to practice law in Mississippi and Alabama.

the Fifth Circuit essentially rendered a non-decision.5 On December 6, 2010, the Supreme Court granted certiorari on the Second Circuit case.6 On February 2, 2011, the plaintiff in the Fourth Circuit case filed a petition for a writ of certiorari with the Supreme Court. This article demonstrates the many reasons why public nuisance law is particularly ill-suited to address climate change.

California v. General Motors Corp., No. C06-05755, 2007 WL 2726871 (N.D. Cal. Sept. 17, 2007). 5 Comer v. Murphy Oil USA, No. 07-60756, 2010 WL 2136658 (5th Cir. May 28, 2010). 6 Connecticut v. American Elec. Power Co., Inc., 406 F.3d 265 (S.D.N.Y. 2005), rev’d 582 F.3d 309 (2nd Cir. 2009), cert. granted, no. 174 (Dec. 2, 2010).

I

DEFENSE COUNSEL JOURNAL–April 2011

I. Public Nuisance Law

A. Historical origins Public nuisance law originated in the

twelfth century under the English common law.7 In its earliest form, it was used to remedy infringements of rights of the Crown.8 “The earliest nuisance cases, dating from 1168, were cases in which both the injured party sought abatement – and sometimes compensation – and, at the same time, officers of the crown actively initiated actions to punish nuisances as criminal acts.”9 As a criminal writ belonging to the Crown,10 nuisance “was used in cases that involved encroachments upon the King’s land or the blocking of public roads or waterways. The King sought to punish these criminal infringements, commonly know as ‘purprestures,’ through criminal proceedings.”11 By the fourteenth

7 Matthew R. Watson, Note, Venturing Into the Impenetrable Jungle: How California’s Expansive Public Nuisance Doctrine May Result in an Unprecedented Judgment Against the Lead Paint Industry in the case of County of Santa Clara v. Atlantic Richfield Company, 15 ROGER WILLIAMS U. L. REV. 612, 615 (2010). 8 Id. (citation omitted). 9 Donald G. Gifford, Public Nuisance as a Mass Products Liability Tort, 71 U. CIN. L. REV. 741, 794 (2003) (hereinafter, “Gifford”). 10 Richard O. Faulk and John S. Gray, Alchemy in the Courtroom? The Transmutation of Public Nuisance Litigation, 2007 MICH. ST. L. REV. 941, 951 (2007). 11 Faulk and Gray, supra note 10, at 951 (citations omitted). See also, L. Mark Walker and Dale E. Cottingham, An Abridged Primer on the Law of Public Nuisance, 30 TULSA L.J. 355, 355-357 (1994).

century, nuisance law was “extended to include rights common to the public, such as roadway safety, air and water pollution, disorderly conduct, and public health (e.g., to stop the spread of disease).”12

Public nuisance actions were typically criminal actions until a 1536 English court decision that allowed individuals to recover damages under nuisance law.13 Under that decision, “the crime of public nuisance became also a tort in any instance in which the plaintiff could show damage which was particular to him and not shared in common with the rest of the public.”14 This was “a significant departure from the general rule that the courts would not impose tort liability upon a person for the violation of a criminal law that was intended to protect the public at large.”15

12 Faulk and Gray, supra note 10, at 951 (citations omitted). 13 Id. at 952. 14 William L. Prosser, Private Action for Public Nuisance, 52 VA. L. REV. 997, 1005 (1966). 15 Walker and Cottingham, supra note 11, at 356-57. See also, Prosser, supra note 14, at 999: “A public nuisance is a species of catch-all low-grade criminal offense, consisting of an interference with the rights of the community at large, which may include anything from the blocking of a highway to a gaming-house or indecent exposure. Although as in the case of other crimes, the normal remedy is in the hand of the state, a public nuisance may also be a private one, when it interferes with private land. The seeds of confusion were sown when courts began to hold that a tort action would lie even for a purely public nuisance if the plaintiff had suffered ‘particular damage.’”

The Misuse of Public Nuisance Law to Address Climate Change Page 197

By the seventeenth century, Parliament had added to the types of conduct found by the courts to constitute the crime of public nuisance, “thus beginning a pattern of legislative bodies declaring certain activities to be public nuisances that continues to this day.”16 All jurisdictions in the United States subsequently enacted criminal statues covering such nuisances without attempting to define them, “or with at most a very general and rather meaningless definition.”17 “Such statutes commonly are construed to include anything which would have been a public nuisance at common law.”18 Distinctions eventually emerged between public and private nuisances, and they became separate torts. “If the defendant’s actions harmed only a single plaintiff, the proper remedy was an action for damages, the precursor of private nuisance. If the nuisance affected the entire community, it most often was addressed by the local courts as a criminal or abatement matters. Actions for damages were not available in such cases.”19

Nuisances today are classified as public, private, and mixed.20 A public nuisance affects an indefinite number of people, the public generally, and is normally but not always abated by a state

16 Gifford, supra note 9, at 798. 17 For example, under California statutory law, “anything which is injurious to health” is a nuisance. CAL. CIV. CODE § 3479. 18 W. Page Keeton, et al., PROSSER AND

KEETON ON THE LAW OF TORTS, § 90, at 645-646 (5th ed. 1984) (citations omitted). 19 Gifford, supra note 9, at 796 (citation omitted). 20 John E. Cribbet, PRINCIPLES OF THE LAW OF

PROPERTY, 398 (3d ed. 1989).

officer.21 A private nuisance affects one or a small group of property owners in a manner different from its impact on the public generally, and typically involves a private suit for damages.22 Many nuisances fall into the mixed category because they involve both public abatement and a private suit for damages.23 “This classification makes more apparent the inherent weakness of the law of nuisance; it is really a kind of judicial zoning but carried out on a sporadic, hit-or-miss basis.”24

B. Restatement (Second) of Torts

and the Expansion of Public Nuisance.

The modern formulation of public

nuisance is found in Section 821B of the Restatement (Second) of Torts. Unfortunately, the Restatement’s formulation departs from the historical requirement that public nuisance involve a criminal interference with the public generally. “In 1966, William Prosser, the Reporter for the Restatement (Second) of

21 Id. 22 Id. 23 Id. 24 Id. at 398-399; “Public and private nuisance laws are often overlapping and interrelated. In many jurisdictions they are not mutually exclusive approaches to a nuisance factual situation. In these jurisdictions, a nuisance may be both public and private in character. Such nuisances are referred to as mixed nuisances. In these jurisdictions, a nuisance which affects a considerable number of people or a public interest and which also produces special injury to private rights may be the subject of both a public nuisance and private nuisance claim.” Walker and Cottingham, supra note 11, at 362.


Torts, tackled the law of public nuisance and sought to impose a rule-like structure on the tort.”25 Prosser’s proposed draft of Section 821B sought to limit recovery to where there had been a violation of a criminal statute by defining public nuisance as follows: “A public nuisance is a criminal interference with a right common to all members of the public.”26

But some members of the American Law Institute (“ALI”) “who saw Prosser’s proffered language as a way to restrict the use of public nuisance in the environmental cases then emerging sought to have it reconsidered.”27 In 1971, ALI adopted a version of Section 821B “that unmoored the tort of public nuisance from the decades of law that generally had required a violation of criminal law.”28 As adopted, Section 821B defines a public nuisance as “an unreasonable interference with a right common to the general public.”29 Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following:

(a) whether the conduct involves a

significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or

(b) whether the conduct is proscribed by a statute, ordinance or administrative regulation, or

25 Gifford, supra note 9, at 806 (citations omitted). 26 Id. (citations omitted). 27 Id. 28 Id. at 807. 29 Restatement of Torts (Second) § 821B(1).

(c) whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right.30

The Restatement “is more helpful

than the reasoning in many cases,” but it fails to provide “meaningful boundaries for tortious liability.”31 Section 821B “serves as an invitation for judges and jurors to provide their own definitions of what constitutes ‘unreasonable interference’ and ‘a right common to the general public’ without the guidance generally provided by precedents.”32

Although public nuisance law originated more than 900 years ago, its use began to expand in the 1970s when the first attempts were made to use public nuisance against product manufacturers.33 The expansion continued with the “Love Canal” environmental litigation in the 1980s. The courts in the Love Canal litigation blurred the distinction between public and private nuisance by borrowing “from public nuisance the liability expanding principle that a defendant can be held liable for creating a nuisance even if the defendant does not continue to own or possess the land or otherwise carry on or maintain the nuisance at the time of the litigation.”34

Public nuisance law was first utilized in mass products torts litigation as part of

30 Restatement of Torts (Second) § 821B(2)(a)-(c). 31 Gifford, supra note 9, at 776. 32 Id. at 809. 33 Id. at 745. 34 Id. at 812 (citation omitted).


the litigation filed by American states against tobacco companies during the 1990s.35 In 1994, the State of Mississippi filed suit against several tobacco companies, alleging unjust enrichment, indemnity and public nuisance.36 Within three years, at least forty states filed suits against the tobacco manufacturers.37 In general, the states sought reimbursement for the costs they allegedly sustained from tobacco-related illnesses.38 Those cases were settled before judgment, so the courts never ruled on the validity of the states’ public nuisance claims.39

Public nuisance law was subsequently used to sue manufacturers of asbestos and lead paint.40 Although these efforts generally failed,41 courts reached “strikingly inconsistent conclusions” regarding the viability of public nuisance claims against product manufacturers because of the vague manner in which the tort is defined and inconsistent judicial understandings of the core elements of the tort.42 “[N]o judicial consensus has emerged on some of the core issues that should establish the parameters of the tort of public nuisance. For example, what exactly is the public nuisance for which defendant may be 35 Id. at 747 (citation omitted). 36 Id. at 759 (citation omitted). 37 Id. at 759 (citation omitted). 38 Id. at 759 (citation omitted). 39 Id. at 761-762 (citations omitted). 40 Watson, supra note 7; Gifford, supra note 9, at 823-824; Faulk and Gray, supra note 10, at 978-1014. 41 See, e.g., Rhode Island v. Lead Industries Ass’n, Inc., 951 A.2d 428 (R.I. 2008) (rejecting public nuisance claim against several manufacturers of lead paint). 42 Gifford, supra note 9, at 748 (citations omitted).

liable? Is it defendant’s conduct or the harm itself. . . . Similarly, courts disagree as to whether the plaintiff in a public nuisance action must prove underlying tortious conduct by the defendant – an intentional act, negligence, or a strict liability tort – or whether the existence of an objectionable condition itself establishes the tortious liability.”43

Some courts have “provided plaintiffs with a potentially potent weapon” by allowing states to pursue expansive damages for recoupment or reimbursement of medical or other payments “on the grounds that the state is acting as a ‘quasi-sovereign’ in a parens patriae action.”44 “This aggressive coupling of the state’s unique ability to sue in a quasi-sovereign capacity with the assertion of public nuisance claims in mass products cases effectively reverses the 900-year old assumption that the state’s remedies for public nuisance are limited to criminal prosecution and injunctive relief.”45

43 Id. at 748-49 (citations omitted); see also Faulk and Gray, supra note 10. 44 Gifford, supra note 9, at 783-784 (citations omitted); see also Faulk and Gray, supra note 10, at 968-78; County of Santa Clara v. Superior Court, 50 Cal.4th 35, 235 P.3d 21, 112 Cal.Rptr.3d 697 (Cal. 2010) (holding in a public nuisance case against lead paint manufacturers that public entities may engage private counsel under contingent fee agreements, provide that private counsel remain subject to the supervision and control of government attorneys). 45 Gifford, supra note 9, at 784-785.


II. The Climate Change Cases A. Core concepts Creative lawyers continue to stretch

and manipulate “the concept of public nuisance to reapportion liability for macrosocial problems.”46 Most recently, public nuisance has been used to sue banks and financial institutions for the consequences of mass home foreclosures,47 as well as oil, gas, coal, and other companies for climate change.48 Climate change cases have reached very different conclusions regarding several core legal concepts, including: standing, non-justiciability under the political question doctrine, and preemption or displacement of common law claims by federal statutory law.

46 Melissa C. King, Recouping Costs for Repairing “Broken Windows: The Use of Public Nuisance by Cities to Hold Banks Liable for the Costs of Mass Foreclosures, 45

TORT TRIAL & INS. PRAC. L.J. 97, 100 (2009). 47 See generally, King, supra note 46; Richard E. Gottlieb and Andrew J. McGuinness, Subprime Lending as a Public Nuisance: Casting Blame on Lenders and Wall Street for Inner City Blight, 62 CONSUMER FIN. L.Q. Rep. 4 (2008); Matthew Saunig, Note, Rebranding Public Nuisance: City of Cleveland v. Ameriquest Mortgage Securities, Inc. as a Failed Response to Economic Crisis, 59 CATH. U. L. REV. 911 (2010). 48 Robert D. Allen, Scott M. Seaman, and John DeLascio, Emerging Issues: Global Warming Claims and Coverage Issues, 76 DEF. COUNS. J. 12, 21-24 (2009).

1. Standing Standing addresses who may bring

the lawsuit.49 In order to have standing, the plaintiff must satisfy three elements: (1) injury in fact, (2) a causal connection between the injury and the conduct complained of, and (3) redressability – i.e., the likelihood that the injury will redressed by a favorable opinion.50 These elements comprise the Lujan test for standing. An injury in fact requires the invasion of a legally protected interest that is both “concrete and particularized,” and “actual or imminent.” The causation element requires that the injury be “fairly traceable” to the defendant’s conduct, and not the result of the independent action of a third party not before the court.51 The party invoking federal jurisdiction bears the burden of establishing these elements. “Since they are not mere pleading requirements but rather an indispensable part of the plaintiff’s case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.”52

In general, the Lujan test applies to individuals and private entitles who sue. As discussed in Massachusetts v. Environmental Protection Agency (“EPA”),53 a different standing analysis

49 15 MOORE’S FEDERAL PRACTICE, § 101.20 (3d ed.). 50 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). 51 504 U.S. at 560. 52 Id. at 561. 53 549 U.S. 497, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007).


applies when a state sues in a quasi-sovereign capacity. In Massachusetts v. EPA, nineteen private organizations filed a rulemaking petition that asked EPA to regulate greenhouse gas emissions from new motor vehicles under the Clean Air Act (“CAA”).54 EPA denied the rulemaking petition. The private organizations appealed the denial to the Court of Appeals for the District of Columbia, and Massachusetts and others intervened in the appeal. The Court of Appeals denied the petition for review, and the case was appealed to the Supreme Court.55

The Supreme Court drew a distinction between procedural and substantive standing. If Congress affords a procedural right to a litigant, then that litigant can assert the right without meeting the normal standing requirements. “When a litigant is vested with a procedural right, that litigant has standing if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decisions that allegedly harmed the litigant.”56 The Supreme Court found that the CAA vested Massachusetts with the procedural right to challenge agency action unlawfully withheld. It noted that only one of the litigants needs to have standing to permit judicial review. The Supreme Court stressed “the special position and interest of Massachusetts. It is of considerable relevance that the party seeking review here is a sovereign State and not . . . a private individual,” and that Massachusetts owns a great deal of

54 Codified at 42 U.S.C. §§ 7401 to 7671q. 55 Massachusetts v. EPA, 549 U.S. at 510-516. 56 Id. at 518.

territory alleged to be affected by greenhouse gas emissions.57

The Supreme Court noted that when a state enters the Union, it surrenders some sovereign prerogatives. “Massachusetts cannot invade Rhode Island to force reductions in greenhouse gases emissions, it cannot negotiate an emissions treaty with China or India, and in some circumstances the exercise of its police powers to reduce in-state motor vehicle emissions might well be pre-empted.”58 These sovereign prerogatives are now lodged in the federal government, and Congress has ordered EPA to protect Massachusetts and others by prescribing applicable standards under the CAA for emission of air pollutants from new motor vehicles. Congress also gave Massachusetts the procedural right to challenge EPA’s denial of its rulemaking petition as arbitrary and capricious. “Given that procedural right and Massachusetts’ stake in protecting its quasi-sovereign interests, the Commonwealth is entitled to special solicitude in our standing analysis.”59

With this understanding, the Supreme Court applied the substantive Lujan60 standing requirements. It concluded that those standards were satisfied, and Massachusetts had standing to challenge EPA’s denial of its rulemaking petition.61 The injury in fact requirement was satisfied because EPA’s steadfast refusal to regulate greenhouse gas emissions presented an actual and imminent risk of harm to Massachusetts.

57 Id. at 518-519. 58 Id. at 519. 59 Id. at 520. 60 504 U.S. 555, 560 (1992). 61 Id. at 520-526.


The causation requirement was satisfied because “EPA does not dispute the existence of a causal connection between man-made greenhouse gas emissions and global warming. At a minimum, EPA’s refusal to regulate such emissions ‘contributes’ to Massachusetts injuries.” The redressability requirement was satisfied because, although regulating motor vehicle emissions will not by itself reduce global warming, it could slow or reduce the effects of global warming. Likewise, a reduction in domestic emissions would slow the pace of global emissions increases, no matter what happens in developing countries such as China and India.62

2. Political question doctrine The political question doctrine

“requires federal courts to abstain from the review of constitutional claims that are more amenable to resolution by other branches of the federal government instead of rendering a judgment on the merits.”63 In Baker v. Carr,64 the Supreme Court set forth six independent tests for the existence of a non-justiciable political question:

[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the

62 Id. 63 15 MOORE’S FEDERAL PRACTICE, § 101.110 (3d ed.). 64 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).

impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.65

These tests are listed in descending

order of importance.66 Moreover, “the concept of a textual commitment to a coordinate political department is not completely separate from the concept of a lack of judicially discoverable and manageable standards for resolving it; the lack of judicially manageable standards may strengthen the conclusion that there is a textually demonstrable commitment to a coordinate branch.”67

3. Preemption State law can be preempted in two

ways.68 First, if Congress expressly evidences an intent to occupy a given field, any state law falling within that

65 Id. at 217. 66 Vieth v. Jubelirer, 541 U.S. 267, 278, 124 S.Ct. 1769, 158 L.Ed.2d 546 (2004). 67 Nixon v. United States, 506 U.S. 224, 228-29 113 S.Ct. 732, 122 L.Ed.2d 1 (1993). 68 Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984).


category is preempted.69 Second, if Congress has not entirely displaced state regulation over the matter, state law is still preempted to the extent that it actually conflicts with federal law, or where the law stands as an obstacle to the accomplishment of the full purposes and powers of Congress.70 Three primary cases provide circumstances when federal law displaces federal or state common law public nuisance claims.

Milwaukee v. Illinois.71 The Supreme Court recognized the existence a federal common law for abatement of a nuisance caused by interstate water pollution in Illinois v. Milwaukee72 (“Milwaukee I”). In May 1972, following the Supreme Court’s decision in Milwaukee I, Illinois sued Milwaukee and other Wisconsin cities under the federal common law of public nuisance for allegedly polluting Lake Michigan through overflows of untreated sewage and discharges of inadequately treated sewage.73 Five months later, Congress passed the Federal Water Pollution Control Act Amendments of 1972 (known as the Clean Water Act or “CWA”),74 which made it illegal to discharge pollutants into the nation’s waters, except under a permit. To the extent that the EPA has promulgated regulations establishing specific effluent limitations, those limitations are incorporated as a condition

69 Id. (citations omitted). 70 Id. (citations omitted). 71 451 U.S. 304, 101 S.Ct. 1784, 68 L.Ed.2d 114 (1981). 72 406 U.S. 91, S.Ct. 1385, 31 L.Ed.2d 712 (1972). 73 Milwaukee II, 451 U.S. at 308-310. 74 The CWA is codified at 33 U.S.C. §§ 1251 et seq.

of the permit.75 The Supreme Court granted certiorari in Milwaukee v. Illinois (“Milwaukee II”) to consider the effect of this legislation on the cause of action previously recognized in Milwaukee I.76

The Supreme Court considered whether the CWA displaced the federal common law created in Milwaukee I. The analysis for determining if federal statutory law governs a question previously the subject of federal common law is not the same as that used in deciding if federal law preempts state law. In contrast to the preemption of state law, a clear and manifest purpose is not required when the question is whether federal statutory or federal common law governs.77 The Supreme Court held that Illinois had no federal common law remedy because “Congress has not left the formulation of appropriate federal standards to the courts through application of often vague and indeterminate nuisance concepts . . . but rather has occupied the field through the establishment of a comprehensive regulatory program supervised by an expert administrative agency.” In enacting the CWA, Congress intended to establish an all-encompassing program of water pollution regulation. “Every point source discharge is prohibited unless covered by a permit, which directly subjects the discharger to the administrative apparatus established by Congress to achieve its goals.”78 Because the problem of effluent limitations and overflows was thoroughly addressed by the administrative scheme established by 75 Milwaukee II, 451 U.S. at 310-311. 76 Id. at 307-308. 77 Id. at 316-317. 78 Id. at 317-318.


Congress, there was no basis to impose different standards under federal common law.79

Finally, the Supreme Court disagreed with Illinois’s claim that Congress intended to preserve the federal common law remedy recognized in Milwaukee I because two sections of the CWA – 33 U.S.C. §§ 1370 and 1365(e) – contain a “savings clause” that preserves common law remedies. Section 1370 provides that nothing in the CWA precludes a states from adopting and enforcing limitations on the discharge of pollutants in-state that are more stringent than those adopted under the CWA. This provision did not preserve Illinois’ public nuisance claim under federal common law because any standards established by federal common law are federal standards, and nothing in the Act suggests that states may use federal standards to establish more stringent standards on out-of-state discharges.80 Section 1365(e), the citizen-suit provision of the CWA, provides that “[n]othing in this section shall restrict any right which any person . . . may have under any statute or common law to seek enforcement of any effluent standard or limitation or to seek any other relief.”81 This provision does not mean that the CWA as a whole does not supplant federal common law. It means only that the particular section authorizing citizen suits does not do so.82

Middlesex County Sewerage Auth. v. National Sea Clammers Ass’n.83

79 Id. at 320-323. 80 Id. at 327-328. 81 Id. at 328, quoting 33 U.S.C. § 1365(e). 82 Milwaukee II, 451 U.S. at 328-329. 83 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981).

Plaintiffs harvest fish and shellfish off the coast of New York and New Jersey. Their Association sued various state and federal governmental entities and officials for alleged damage to fishing grounds caused by discharges and ocean dumping of sewage and other waste. Plaintiff alleged defendants violated the CWA, the Marine Protection, Research, and Sanctuaries Act of 1972 (“MPRSA”),84 and the federal common law of nuisance. Plaintiff sought injunctive and declaratory relief and compensatory and punitive damages.85

The CWA established a comprehensive program of water pollution regulation, and the MPRSA established a comprehensive federal regulation of the dumping of materials into ocean waters near the coastline of the United States. Because the FWPCA and the MPRSA provided “elaborate enforcement provisions,” plaintiff had no implied private right of action under those Acts.86 The Supreme Court rejected plaintiff’s nuisance claim because it held in Milwaukee II that the federal common law of nuisance is completely preempted in the area of water pollution by the comprehensive scope of the CWA. Because the MPRSA is no less comprehensive than the CWA, it likewise completely preempts plaintiff’s nuisance claim to the extent that the litigation involves ocean waters not covered by the CWA.87

84 33 U.S.C. §§ 1401 et seq. 85 Middlesex Cty. Sewerage Auth., 453 U.S. at 5. 86 Id. at 11-18. 87 Id. at 21-22.


International Paper Co. v. Ouellette.88 International Paper Company (“IPC”) operated a mill on the New York side of Lake Champlain, and discharged effluents into the lake. Plaintiffs were a group of property owners who resided or leased land on the Vermont shore of the lake. They filed a class action against IPC. They alleged that IPC’s discharge of effluents constituted a nuisance under Vermont common law. Plaintiffs sought money damages and injunctive relief.89 The issue was whether the CWA preempts a common law nuisance claim filed in a Vermont court under Vermont law when the source of the alleged injury is located in New York.90

The Supreme Court noted that a federal statute need not provide explicitly that state laws are preempted because preemption may be presumed when the federal legislation is “sufficiently comprehensive to make reasonable the inference that Congress ‘left no room’ for supplementary state regulation.”91 In addition to express or implied preemption, a state law is invalid when it actually conflicts with a federal statute.92

The Supreme Court held that the CWA preempts the common law of an affected state to the extent that it seeks to impose liability on a point source in another state. In light of the CWA’s comprehensive regulation and the fact that the control of interstate pollution is primarily a matter of federal law, the only state suits that remain available are those

88 479 U.S. 481, 107 S.Ct. 805, 93 L.Ed.2d 883 (1987). 89 Id. at 484. 90 Id. at 484. 91 Id. at 491 (citation omitted). 92 Id. (citation omitted).

specifically preserved by the CWA.93 “Although Congress intended to dominate the field of pollution regulation, the savings clause [i.e., §§ 1365(e) and 1370] negates the inference that Congress ‘left no room’ for state causes of action.” But these provisions cannot be read so broadly as to preserve the right to bring suit under the law of an affected state.94

With these core concepts in mind, major climate change cases are reviewed below. The courts in the climate change cases have reached vastly different conclusions regarding the meaning and application of these core concepts.

B. Connecticut v. American Elec.

Power Co., Inc.95 Eight states,96 the City of New York

and three land trusts (“plaintiffs”) separately sued the same five electric power companies97 and the Tennessee Valley Authority (“defendants”).98 Plaintiffs alleged that defendants are the five largest emitters of carbon dioxide in the United States, and that there is a proportional relationship between carbon dioxide emissions and injury: “The greater the emissions, the greater and faster the temperature change will be,

93 Id. at. 491-494. 94 Id. at 492. 95 582 F.3d 309 (2nd Cir. 2009). 96 California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont, and Wisconsin. 97 American Electric Power Company, Inc., American Electric Power Service Corporation, Southern Company, Xcel Energy, and Cinergy Corporation. 98 American Elec. Power Co., 582 F.3d at 314.


with greater resulting injuries.”99 Plaintiffs sued under the federal common law of public nuisance, but did not seek money damages. They sought only injunctive relief – i.e., to permanently require defendants to abate the nuisance by capping carbon dioxide emissions and then reducing them by a specified percentage each year.100

The district court held that plaintiffs’ claims presented a non-justiciable political question and dismissed the complaints.101 The Second Circuit reversed. It held that the district court erred by dismissing the complaints on political question grounds, that plaintiffs have standing, that plaintiffs stated a claim under the federal common law of nuisance, and that plaintiffs’ claims are not displaced by federal statutory law.102 On December 2, 2010, the United States Supreme Court granted defendants’ petition for writ of certiorari, and the case is currently pending before the Supreme Court.

1. Political question doctrine The Second Circuit applied the Baker

factors.103 It found that there was “no textual commitment in the Constitution that grants the Executive or Legislative branches responsibility to resolve issues concerning carbon dioxide emissions or other forms of alleged nuisance,” so the first Baker factor—whether there is a textually demonstrable constitutional

99 Id. at 317. 100 Id. at 318. 101 Id. at 314. 102 Id. at 315. 103 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).

commitment of the issue to a political department—did not apply.104 The Second Circuit also found that because federal courts have successfully adjudicated complex public nuisance cases “for over a century,” the second Baker factor—whether there is a lack of judicially discoverable and manageable standards for resolving the claims—did not apply.105

The district court relied on the third Baker factor—whether it is impossible to decide the case without an initial policy determination of a kind clearly for nonjudicial discretion—in dismissing plaintiffs’ complaints, but the Second Circuit disagreed for two reasons.106 First, the political branches have not made an initial policy determination regarding carbon dioxide emissions, and a failure to act by the political branches does not preclude plaintiffs from pursuing their nuisance claim.107 “Milwaukee I108 stands for the proposition that if the extant statutes governing water pollution do not cover a plaintiff’s claim and provide a remedy, a plaintiff is free to bring its claim under the federal common law of nuisance; a plaintiff is not obliged to await the fashioning of a comprehensive approach to domestic water pollution before it can bring an action to invoke the remedy it seeks.”109 Second, if the claim is an “ordinary tort

104 American Elec. Power Co., 582 F.3d. at 324-325. 105 Id. at 326-330. 106 Id. at 330-331. 107 Id. at 330. 108 406 U.S. 91, S.Ct. 1385, 31 L.Ed.2d 712 (1972). 109 American Elec. Power Co., 582 F.3d at 330.


suit,” then it can be decided without making an initial policy determination. The Second Circuit found that plaintiffs’ claim under the federal common law of nuisance is an “ordinary tort suit.”110 The Second Circuit also found that the fourth, fifth, and sixth Baker factors did not apply. “Allowing this litigation where there is a lack of a unified policy [regarding greenhouse gas emissions] does not demonstrate any lack of respect for the political branches, contravene a relevant political decision already made, or result in multifarious pronouncements that would embarrass the nation.”111

2. Standing The Second Circuit analyzed the

plaintiff states’ standing to bring both parens patriae suits, and proprietary suits where “the State sues much like a private party suffering a direct, tangible injury.”112 The Second Circuit began by analyzing the Supreme Court’s decision in Snapp v. Puerto Rico.113 In Snapp, the Supreme Court concluded that a state has parens patriae standing if it (1) articulates an interest apart from the interests of private parties, (2) the state must have a quasi-sovereign interest, and (3) the state must allege injury to a sufficiently substantial segment of its population.114

The Second Circuit next analyzed the impact of the Supreme Court’s decision

110 Id. at 331. 111 Id. at 332. 112 Id. at 334. 113 458 U.S. 592, 102 S.Ct. 3260, 73 L.Ed.2d 995 (1982). 114 American Elec. Power Co., 582 F.3d at 335, citing Snapp, 458 U.S. at 607.

in Massachusetts v. EPA115 on the Snapp test for parens patriae standing and the Lujan test116 – i.e., injury, causation and redressability. As noted, in Massachusetts v. EPA, Congress explicitly authorized a procedural right to challenge EPA actions under the CAA.117 That procedural right, and Massachusetts’ stake in protecting its quasi-sovereign interests as a landowner, entitled Massachusetts to “special solicitude” in the standing analysis. Despite such “special solicitude,” the Second Circuit analyzed whether the plaintiff states had parens patriae standing under the Snapp test, and whether they had standing in their proprietary capacity under the Lujan test.118

a. Parens patriae Standing The Second Circuit found that the

states had parens patriae standing under the Snapp test to sue through their quasi-sovereign interest in safeguarding the public health and physical and economic well-being of their residents. “The States have alleged that the injuries resulting from carbon dioxide emissions will affect virtually their entire populations.”119

115 549 U.S. 497, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007). 116 Lujan v. Defenders of Wildlife, 504 U.S. at 560. 117 American Elec. Power Co., 582 F.3d at 338. 118 Id. 119 Id. at 338.


b. Proprietary Standing Under Lujan

The Second Circuit applied the Lujan

test—injury in fact, causation and redressability—to determine whether the plaintiff states, New York City and the land trusts had standing to sue in their proprietary capacity as property owners,120 finding first that plaintiffs sufficiently alleged both current and future injuries in fact. The current injury requirement was satisfied because California, one of the plaintiff states, alleged that global warming reduced the size of California’s snowpack, which caused declining water supplies and increased flooding. The future injury requirement was satisfied because plaintiff states with ocean coastlines alleged that they would suffer future harm because global warming will result in rising sea levels, which will damage their coastal infrastructure and low-lying public property.121 These alleged future injuries were sufficiently “imminent” because the certainty of the future injury is more important than a strict temporal proximity between the alleged conduct and injury, and plaintiffs sufficiently alleged that future injuries are certain to occur.122

The Second Circuit noted that the causation requirement is satisfied if the alleged injury is “fairly traceable” to the actions of the defendant.123 Defendants claimed that plaintiffs’ alleged injuries are not “fairly traceable” to defendants’ actions because many others contribute to 120 Id. at 339. 121 Id. at 341-342. 122 Id. at 342-344. 123 Id. at 345.

global warming in numerous ways. The Second Circuit disagreed, finding that “this is an issue best left to the rigors of evidentiary proof at a future stage of the proceedings, rather than dispensed with as a threshold question of constitutional standing.”124 In an open-ended ruling, the Second Circuit found it sufficient that plaintiffs alleged that defendants’ “emissions contribute to their injuries.”125

The Second Circuit also found that plaintiffs satisfied the redressability requirement because alleging that their injuries will be lessened if defendants’ emissions are reduced, notwithstanding there are many other sources of emissions, was sufficient to show that plaintiffs would receive “at least some” relief.126 The Second Circuit relied on Massachusetts v. EPA127 to support its finding. The Supreme Court “recognized that regulation of motor vehicle emissions would not ‘by itself reverse global warming,’ but that it was sufficient for the redressability inquiry to show that the requested remedy would slow or reduce it.”128

3. Stating a claim under the

federal common law of nuisance

The Restatement (Second) of Torts

§ 821B defines a public nuisance as “an

124 Id. at 347. 125 Id. 126 Id. at 347-349, citing Tozzi v. U.S. Dep't of Health & Human Servs., 271 F.3d 301, 310 (D.C. Cir. 2001). 127 549 U.S. 497. 128 American Elec. Power Co., 582 F.3d at 348, quoting Massachusetts v. EPA, 549 U.S. at 525.


unreasonable interference with a right common to the general public.”129 The Second Circuit found that “the Restatement definition provides a workable standard for assessing whether the parties have stated a claim under the federal common law of nuisance.”130 The states’ allegations—that defendants’ actions in contributing to global warming interfere with the right to public safety and comfort, and the right to protection of vital natural resources and public property—are sufficient to state a claim under the federal common law of nuisance because they incorporate the Restatement’s definition of public nuisance.131 After a lengthy analysis, the Second Circuit further found that a plaintiff need not be a state in order to sue under the federal common law of nuisance, so private parties such as the plaintiff land trusts can assert such claims.132 The trusts alleged that defendants’ carbon dioxide emissions, “by contributing to global warming, constitute a substantial and unreasonable interference with public rights including . . . the rights to use, enjoy, and preserve the aesthetic and ecological values of the natural world.”133 The Second Circuit found that this was sufficient to state a claim.

4. Preemption The Second Circuit found that

plaintiffs’ claim was not displaced by

129 American Elec. Power Co., 582 F.3d at 352. 130 Id. 131 Id. at 352-353. 132 Id. at 358-369. 133 Id. at 370.

federal statutory law because the Clean Air Act does not regulate carbon dioxide emissions, “and no Supreme Court case has held that the CAA has displaced federal common law in the area of air pollution.”134 “We hold that neither Congress nor EPA has regulated greenhouse gas emissions from stationary sources in such a way as to ‘speak directly’ to the ‘particular issue’ raised by plaintiffs.”135

C. Comer v. Murphy Oil USA Plaintiffs in Comer are residents and

land owners on the Mississippi Gulf coast, who allege that defendants’ energy, fossil fuel, and chemical operations caused the emission of greenhouse gasses which contributed to global warming. In turn, global warming allegedly caused a rise in sea levels and increased the severity of Hurricane Katrina. Plaintiffs asserted claims for public and private nuisance, trespass, negligence, unjust enrichment, fraudulent misrepresentation, and civil conspiracy. Plaintiffs sought money damages, but not injunctive relief.136

The district court dismissed plaintiffs’ claims because it found that plaintiffs did not have standing to sue, and their claims presented non-justiciable political questions.137 On appeal, a panel of the Fifth Circuit initially found that plaintiffs have standing to assert their claims for public and private nuisance, trespass and negligence, but not for unjust

134 Id. at 378. 135 Id. at 387-388. 136 Comer v. Murphy Oil USA, 585 F.3d 855, 859-60 (5th Cir. 2009). 137 Id. at 860.


enrichment, fraud and civil conspiracy.138 The panel also found the plaintiffs’ claims did not present non-justiciable political questions, and their claims were not preempted. Although subsequently vacated, the panel’s opinion is discussed below.

1. Standing The Fifth Circuit examined the

standing doctrine under both Mississippi and federal law. Under Mississippi law, plaintiffs have standing to sue when they assert a colorable interest in the subject matter of the litigation or experience an adverse effect from the conduct of the defendant.139 Plaintiffs satisfied this standard because they alleged that their interests in land and property were damaged by the adverse effects of defendants’ greenhouse gas emissions.140 Analyzing federal standing pursuant to Lujan,141 plaintiffs’ claims for public and private nuisance, trespass and negligence satisfied the first and third requirements because plaintiffs alleged an actual injury that can be redressed through compensatory and punitive damages.142

The Fifth Circuit also found that plaintiffs satisfied the second standing requirement – i.e., that the alleged harms are “fairly traceable” to defendants’ actions. In doing so, the Fifth Circuit interpreted the Supreme Court’s opinion in Massachusetts v. EPA143 to mean that “the Court accepted as plausible the link

138 Id. 139 Id. at 862. 140 Id. 141 504 U.S. at 560. 142 Comer, 585 F.3d at 863. 143 549 U.S. 497.

between man-made greenhouse gas emissions and global warming . . . as well as the nexus of warmer climate and rising ocean temperatures with the strength of hurricanes.”144 The Fifth Circuit found this causal chain to be virtually identical to plaintiffs’ claim that defendants’ greenhouse gas emissions contributed to global warming, which damaged plaintiffs’ property through rising sea levels and the increased strength of Hurricane Katrina.145

Defendants also claimed that the “fairly traceable” requirement was not satisfied because their emissions contributed only minimally to plaintiffs’ alleged injuries.146 According to the Fifth Circuit, a similar claim was rejected in Massachusetts v. EPA.147 The Fifth Circuit concluded that “injuries may be fairly traceable to actions that contribute to, rather than solely cause or materially cause, greenhouse gas emissions and global warming.”148 Based on this analysis, the Fifth Circuit concluded that the relevant test for determining whether the “fairly traceable” requirement is satisfied is whether “the pollutant causes or contributes to the kinds of injuries alleged by the plaintiffs.”149 The Fifth Circuit found that plaintiffs satisfied this test because they alleged, among other things, that defendants’ greenhouse gas emissions injured plaintiffs’ land by causing loss due to rising sea levels, and property damage due to Hurricane Katrina. Because plaintiffs’ injuries were

144 Comer, 585 F.3d at 865. 145 Id. 146 Id. at 866. 147 549 U.S. 497. 148 Comer, 585 F.3d at 866. 149 Id.


“fairly traceable” to defendants’ alleged contributions to global warming, plaintiffs had standing to assert claims for public and private nuisance, trespass and negligence.150 Plaintiffs’ claims for unjust enrichment, fraud and civil conspiracy did not satisfy the federal standing requirements. These claims present “a generalized grievance that is more properly dealt with by the representative branches and common to all consumers of petrochemicals and the American public.”151

2. Political question doctrine Applying the Baker factors, the Fifth

Circuit found that plaintiffs’ claims for public and private nuisance, trespass and negligence did not present non-justiciable political questions, noting first that “the Mississippi common law tort rules questions posed by the present case are justiciable, not political, because there is no commitment of those issues exclusively to the political branches of the federal government by the Constitution itself or by federal statutes or regulations.”152 Second, common law tort claims rarely present non-justiciable political questions. When faced with an “ordinary tort sort” the textual commitment factor weighs in favor of judicial resolution, and the common law of tort provides clear rules on which the courts can rely.153 Claims for money damages, as opposed to claims for injunctive relief, do not normally constitute relief that is not judicially 150 Id. at 866-867. 151 Id. at 868. 152 Id. at 870. 153 Id. at 873-874.

manageable. Because plaintiffs were seeking only money damages, their claims were judicially manageable.154

3. Preemption The Fifth Circuit concluded that

plaintiffs’ claims are not preempted by federal law. The Fifth Circuit concluded that in Milwaukee II155 the Supreme Court held that the federal common law of nuisance was preempted by the CWA, which comprehensively occupied the field of water pollution, but the Supreme Court noted that the CWA’s “savings clause” preserved nuisance suits under state common law.156 The Fifth Circuit found that the Clean Air Act and other federal legislation regarding air quality are much less comprehensive than the CWA, and that no act of Congress has preempted state law regarding global warming. Moreover, the Fifth Circuit noted that even if Congress does enact a comprehensive federal law concerning greenhouse gas emissions, it might preserve state common law remedies, as the CWA did.157

4. Panel opinion vacated Following the panel’s decision, the

Fifth Circuit granted defendants’ petition for rehearing en banc.158 The grant of rehearing en banc vacated the panel

154 Id. 155 451 U.S. 304. 156 Comer, 585 F.3d at 878. 157 Id. at 878-879. 158 Comer v. Murphy Oil USA, 598 F.3d 208, 210 (5th Cir. 2010).


opinion and judgment.159 However, after the en banc court was properly constituted, one judge recused himself. “Upon this recusal, the en banc court lost its quorum.” Without a quorum, the en banc court could not proceed with the rehearing, nor could it reinstate the panel opinion.160 The Fifth Circuit dismissed the appeal, and noted that the parties had the right “to petition the Supreme Court of the United States.”161 In essence, the Fifth Circuit did not decide the case.

D. California v. General Motors

Corp. California sued General Motors and

five other automakers162 for creating and contributing to an alleged public nuisance – global warming.163 California alleged that vehicles produced by the automakers constitute over twenty percent of the human-generated carbon dioxide emissions in the United States, and over thirty percent of such emissions in California.164 These emissions allegedly cause global warming.165 The impacts of global warming on California allegedly resulted in an increase in the average winter temperatures in the Sierra Nevada region, which caused a reduction in the snow pack—the source of thirty-five

159 Comer v. Murphy Oil USA, 607 F.3d 1049 (5th Cir. 2010). 160 Id. at 1054. 161 Id. 162 Toyota Motor North America, Inc., Ford Motor Co., American Honda Motor Co., Inc., Daimler Chrysler Corp., and Nissan North America, Inc. 163 2007 WL 2726871 at *1. 164 Id. 165 Id.

percent of California’s water. In addition, California alleged that, because of global warming, the snow pack melts earlier in the spring, which increases the risk of flooding, and that rising sea levels increased erosion along California’s coastline.166

California asserted two causes of action against the automakers: public nuisance under federal common law, and public nuisance under California law. California sought to hold the automakers jointly and severally liable for creating, contributing to, and maintaining a public nuisance, and requested money damages, attorneys’ fees, and a declaratory judgment regarding future damages.167

1. Political question doctrine The threshold issue in this case was

whether California’s claims were non-justiciable political questions.168 The court focused on the third Baker factor – whether it could decide the case without making an initial policy determination of a kind clearly for nonjudicial discretion.169 The court concluded that California’s public nuisance claims were non-justiciable political question because they would require the court to balance the competing interests of reducing global warming emissions and the interests of economic and industrial development. “The balancing of those competing interests is the type of initial policy determination to be made by the political branches.”170

166 Id. 167 Id. at *2. 168 Id. at *5. 169 Id. at *6. 170 Id. at *8.


The court found support for its decision in the Clean Air Act171 and the Energy Policy and Conservation Act.172 Although these Acts do not directly address the issue of global warming and carbon dioxide emissions standards, “when read in conjunction with the prevalence of international and national debate, and the resulting policy actions and inactions, the Court finds that injecting itself into the global warming thicket at this juncture would require an initial policy determination.”173 The court also found support for its decision in Massachusetts v. EPA. The district court held that basis for the standing analysis in Massachusetts “is the concept that the authority to regulate carbon dioxide lies with the federal government.”174 This approach “emphasizes that initial policy determinations are made by the political branches while preserving a framework for judicial review of those determinations.”175 California appealed to the Ninth Circuit, but stated that it would withdraw its appeal if the federal government took steps to regulate greenhouse gas emissions from new motor vehicles or if any of the defendant automakers filed for bankruptcy. In 2009, both conditions were met, so California voluntarily dismissed its appeal.176

171 42 U.S.C. §§ 7401 et seq. 172 49 U.S.C. §§ 32901 et seq. 173 Id. at *9-10. 174 Id. at *11. 175 Id. 176 Randall S. Abate, Public Nuisance Suits for the Climate Change Justice Movement: The Right Thing and the Right Time, 85 WASH. L. REV. 197, 219 (2010).

E. Native Village of Kivalina v. ExxonMobil Corp.177

Plaintiffs Native Village of Kivalina

and the City of Kivalina sued twenty-four oil, energy and utility companies. Kivalina is located at the tip of a six-mile long barrier reef on the northwest coast of Alaska.178 Kivalina’s coast is protected by sea ice. The sea ice acts as a barrier against coastal storms and waves.179 Plaintiffs allege that as a result of global warming, the sea ice is thinner and less extensive. This reduced the barrier that the sea ice provided against coastal storms and waves, and thereby increased the erosion of Kivalina’s coast. The resulting erosion has reached the point where Kivalina is becoming uninhabitable.180 Plaintiffs allege that defendants’ emissions of carbon dioxide and other greenhouse gases caused global warming, which in turn caused the erosion of Kivalina’s coast. Plaintiffs sought money damages from defendants jointly and severally for public nuisance under the federal common law, but did not seek injunctive relief.181

1. Political question doctrine The court first addressed the political

questions doctrine. Applying the Baker factors, the court found that plaintiffs’ nuisance claim is a non-justiciable political question for two primary reasons.182 First, plaintiffs’ claim lacks

177 663 F. Supp.2d 863 (N.D. Cal. 2009). 178 Id. at 868-869. 179 Id. 180 Id. 181 Id. 182 Id. at 871.


judicially discoverable and manageable standards for resolving it. In order to resolve a nuisance claim, the fact finder must weigh the benefit of the nuisance against its alleged harm. Plaintiffs failed to identify any particular judicially discoverable and manageable standards that would guide a fact finder in making this assessment.183 This is especially true because plaintiffs’ nuisance claim is based on the emission of greenhouse gases from innumerable sources throughout the world that affect the entire planet, and sought “to impose liability and damages on a scale unlike any prior environmental pollution case.”184 The court rejected the Second Circuit’s conclusion in American Electric Power185 that the common law provides judicially manageable standards to address plaintiffs’ public nuisance claims. The court found that the cases relied upon by the Second Circuit involved a discrete number of polluters that allegedly caused a specific injury to a specific area. In contrast, plaintiffs conceded that the considerations involved in the emission of greenhouse gases and the resulting effects of global warming are different from those involved in the typical water or air pollution cases. “Plaintiffs global warming claim is based on the emission of greenhouse gases from innumerable sources located throughout the world and affecting the entire planet and its atmosphere.”186 Resolution of plaintiffs’ nuisance claim required the court to make a policy judgment rather than resolve the

183 Id. at 874-875. 184 Id. at 875-876. 185 582 F.3d 309. 186 Native Village of Kivalina, 663 F. Supp.2d at 875.

dispute through legal and factual analysis.187 “Plaintiffs also fail to confront the fact that resolution of their nuisance claim requires the judiciary to make a policy decision about who should bear the cost of global warming.”188

2. Standing The court found that plaintiffs lacked

standing to sue. In particular, plaintiffs failed to satisfy the causation requirement of standing – i.e., that the injury be “fairly traceable” to the challenged conduct of the defendant.189 The court examined and rejected several theories advanced by plaintiffs regarding the causation requirement of standing, including contribution to the injury, seed of the injury, zone of discharge, and the “special solicitude” afforded to sovereigns under Massachusetts v. EPA.190 Plaintiffs conceded that they cannot trace their alleged injuries to any particular defendant, but they claimed they need not do so because they could establish standing by alleging that defendants “contributed” to their injuries. In some CWA cases, courts have held that the defendant’s violation of a discharge permit is sufficient to establish that the plaintiff’s injury is “fairly traceable” to the defendant’s conduct.191

In CWA cases, when a discharge exceeds the federally prescribed limited, it is presumed for purposes of standing

187 Id. at 876. 188 Id. at 876-877. 189 Id. at 877 (citation omitted). 190 Id. at 877-882. 191 Id. at 878-879 (citations omitted). In Comer, the Fifth Circuit applied the “contribution” standard for traceability.

The Misuse of Public Nuisance Law to Address Climate Change 5

that there is a “substantial likelihood” that the defendant’s conduct caused the plaintiff’s injury. “Only then is it permissible for the plaintiff to rely on the notion that the defendant ‘contributed’ to plaintiff’s injury on the ground that it may not be possible to trace the injury to a particular entity.”192 But no federal standards limit the discharge of greenhouse gases, so there is no presumption that there is a substantial likelihood that any defendant’s conduct harmed the Kivalina plaintiffs. Without that presumption, the “contribution” theory is irrelevant because a discharge, standing alone, is not sufficient to establish standing.193 Under the “zone of danger” theory, the causation requirement of standing can be satisfied if the plaintiff is within the discharge zone of the polluter, but not if the plaintiff is so far downstream that his or her injuries cannot be fairly traced to the defendant. The court found that this geographic proximity requirement was not satisfied because plaintiffs conceded that it is impossible to trace the pathway of any particular greenhouse gas emission to any particular defendant. Plaintiffs are not within the “zone of danger” because their “claim for damages is dependent on a series of events far removed both in space and time from [defendants’] alleged discharge of greenhouse gases.”194

Finally, the court concluded that plaintiffs were not entitled to the relaxed standing requirements based upon the “special solicitude” that may be afforded to sovereigns under the Supreme Court’s 192 Native Village of Kivalina, 663 F. Supp.2d at 879-880 (citations omitted). 193 Id. 194 Id. at 881.

analysis in Massachusetts v. EPA.195 Unlike in Massachusetts v. EPA, plaintiffs are not seeking to enforce any procedural rights regarding an agency’s rulemaking authority, but are instead seeking money damages from private entities. Nor could plaintiffs rely upon the “quasi sovereign interests” mentioned in Massachusetts v. EPA, because unlike the states, they did not surrender any sovereign rights “as the price for acceding to the Union.”196

F. North Carolina v. Tennessee

Valley Authority197

The Tennessee Valley Authority (“TVA”) owns and operates eleven coal-fired power plants in Tennessee, Alabama and Kentucky.198 North Carolina sued TVA, contending that the emissions of sulfur dioxide and nitrous oxides from TVA’s coal-fired power plants caused health problems in North Carolina and constituted a public nuisance.199 In the atmosphere, sulfur dioxide and nitrous oxides can transform into microscopic particles known as “fine particulate matter” that cause health problems when inhaled.200 When exposed to sunlight, nitrous oxides also assist in the creation of ozone, “which is known to cause respiratory ailments.”201 North Carolina sought an injunction to require TVA to implement costly controls—scrubbers and selective catalytic reduction (“SCR”) —

195 Id. at 882. 196 Id. at 882. 197 615 F.3d 291 (4th Cir. 2010). 198 Id. at 296. 199 Id. at 296-297. 200 Id. at 296. 201 Id.


that reduce emissions of sulfur dioxide and nitrous oxides.202

The district court agreed with North Carolina in part. It issued an injunction that required TVA to reduce its emissions by installing and operating scrubbers and SCRs at four of its eleven plants by December 13, 2013.203 Those four plants were located within 100 miles of the North Carolina border. The district court concluded that there was insufficient evidence to conclude that TVA’s seven other plants, which are all located more than 100 miles from North Carolina, contributed significantly to pollution in North Carolina.204 The Fourth Circuit began with an analysis of the CAA. The CAA makes the EPA responsible for developing acceptable levels of airborne emissions, which are know as National Ambient Air Quality Standards (“NAAQS”).205 NAAQS are subdivided into Primary NAAQS and Secondary NAAQS. “Primary NAAQS are intended to protect individuals, while Secondary NAAQS are set to protect the surrounding environment . . . . NAAQS are meant to set a uniform level of air quality across the country in order to guarantee both a healthy populace and a healthy environment.”206 Decisions regarding how to meet NAAQS are left to the states. Each state is required to create and submit to EPA a state Implementation Plan (“SIP”). The SIP must provide for the implementation, maintenance and enforcement of NAAQS within the state. SIPs must be consistent with EPA

202 Id. at 297. 203 Id. at 298. 204 Id. 205 Id. at 298-299. 206 Id. at 299.

regulations. Once a SIP is approved by EPA, its requirements become federal law and it is enforceable in federal court.207 “Critically for this case, each SIP must consider the impact of emissions within the state on the ability of other states to meet NAAQS.”208

The Fourth Circuit found that both Alabama and Tennessee have promulgated SIPs, and as part of its compliance with these regulations, TVA had obtained state permits to operate each of its power plants.209 TVA currently operates each of the four plants at issue in conformity with the permits, including limitations on emissions of sulfur dioxide and nitrous oxides. “Indeed, this suit does not present a challenge to Alabama and Tennessee’s SIPs, the permits issued to TVA pursuant to them, or TVA’s operation pursuant to the permits.”210 The Fourth Circuit rejected North Carolina’s request to impose a different set of standards under public nuisance law. “To replace duly promulgated ambient air quality standards with standards whose content must await the uncertain twists and turns of litigation will leave whole states and industries at sea and potentially expose them to a welter of conflicting court orders across the country.”211

In its holding, the Fourth Circuit relied on the Supreme Court’s decision in International Paper Co. v. Ouellette.212 In Ouellette, the Supreme Court

207 Id. at 299-300. 208 Id. at 300. 209 Id. 210 Id. 211 Id. at 301. 212 479 U.S. 481, 107 S.Ct. 805, 93 L.Ed.2d 883 (1987).


emphasized that allowing “a number of states to have independent and plenary regulatory authority over a single discharge would lead to chaotic confrontation between sovereign states.”213 This problem is exacerbated if state nuisance law is the mechanism used because nuisance standards are vague and indeterminate.214 The Fourth Circuit found that the district court properly recognized that the common law of public nuisance “is not ordinarily the means by which such major conflicts among governmental entities are resolved in modern American governance.” This is in part because public nuisance is an “all-purpose tort” that historically has encompassed “a truly eclectic range of activities.”215

Because public nuisance law is often vague and indeterminate, it essentially fails to provide any meaningful standard. “[W]hile public nuisance law doubtless encompasses environmental concerns, it does so at such a level of generality as to provide almost no standard of application. If we are to regulate smokestack emissions by the same principles we use to regulate prostitution, obstacles in highways, and bullfights, we will be hard pressed to derive any manageable criteria.” In this regard, the Fourth Circuit noted that the contrast between the defined standards of the CAA “and an ill-defined omnibus tort of last resort

213 North Carolina, 615 F.3d at 301, quoting Ouellette, 479 U.S. at 496-497. 214 North Carolina, 615 F.3d at 301, citing Ouellette, 479 U.S. at 496. 215 North Carolina, 615 F.3d at 301-302, quoting W. Page Keeton, et al., PROSSER AND

KEETON ON THE LAW OF TORTS, § 90, 643-645 (5th ed. 1984).

could not be more stark.”216 Although not every nuisance action brought under state law is “categorically preempted” by federal law, a state law is preempted if it interferes with the methods by which federal law is designed to reach its goal.217 Although Ouellette did not preempt “each and every conceivable suit under nuisance law, it did recognize “the considerable potential mischief in those nuisance actions seeking to establish emissions standards different from federal and regulatory law and created the strongest cautionary presumption against them.”218

A field of state law is preempted when a scheme of federal regulation is “so pervasive as to make reasonable the inference that Congress left no room for the states to supplement it.”219 The CAA left no room for North Carolina’s public nuisance claim. “Where Congress has chosen to grant states an extensive role in the Clean Air Act’s regulatory regime through the SIP and permitting process, field and conflict preemption principles caution at a minimum against according states a wholly different role and allowing state nuisance law to contradict joint federal-state rules so meticulously drafted.”220

The Fourth Circuit also discussed the CAA’s “savings clause,” which provides that “[n]othing in this section shall restrict

216 North Carolina, 615 F.3d at *302 (emphasis added). 217 Id., citing Ouellette, 479 U.S. at 497. 218 North Carolina, 615 F.3d at 303. 219 Id., quoting Pacific Gas & Elec. Co. v. State Energy Res. Conservations & Dev. Comm., 461 U.S. 190, 204, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983). 220 North Carolina, 615 F.3d at 303.


any right which any person . . . may have under any statute or common law to seek enforcement of any emission standard or limitation or to seek any other relief.”221 The Fourth Circuit again relied on Ouellette, which held that the CWA’s “savings clause,” which is similar to the one found in the CAA, did not preserve a broad right for the state to undermine the CWA through a general savings clause.222 The Supreme Court indicated that the CWA’s “savings clause” was ambiguous regarding which state actions were preserved and noted that “if affected States were allowed to impose separate discharge standards on a single point source, the inevitable result would be a serious interference with the achievement of the ‘full purposes and objective of Congress.’”223 “We thus cannot allow non-source states [such as North Carolina] to ascribe to a generic savings clause a meaning that the Supreme Court in Ouellette held Congress never intended.”224

Finally, the Fourth Circuit applied significant weight to the fact that the four TVA power plants at issue are expressly permitted by the states in which they are located (Alabama and Tennessee).225 “TVA’s plants cannot logically be public nuisances under Alabama and Tennessee law where TVA is in compliance with EPA NAAQS, the corresponding states SIPs, and the permits that implement

221 Id., quoting 42 U.S.C. § 7604(e). 222 North Carolina, 615 F.3d at 303, citing Ouellette, 479 U.S. at 494. 223 North Carolina, 615 F.3d at 304, quoting Ouellette, 479 U.S. at 493-494. 224 North Carolina, 615 F.3d at 304. 225 Id. at 309.

them.”226 On February 2, 2011, the State of North Carolina filed a petition for a writ of certiorari with the United States Supreme Court. The State’s motion remains pending. III. Conclusion

The decisions that have not

dismissed public nuisance claims in climate change cases sustain these claims on the naïve and incorrect assumption that common law provides sufficient standards to resolve climate change issues. The Fifth Circuit found that “common law tort rules provide long-established rules for adjudicating the nuisance, trespass and negligence claims at issue.”227 The Second Circuit found that federal courts have successfully adjudicated complex public nuisance cases “for over a century.”228 The decisions, however, fail to say what those standards are. Indeed, “[o]ne searches in vain . . . for anything resembling a principle in the common law of nuisance.”229 “There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word ‘nuisance.’ It has meant all things to all people, and has been applied indiscriminately to everything from an alarming advertisement to a cockroach baked in a

226 Id. at 310. 227 Comer, 585 F.3d at 875. 228 American Electric Power Co., 582 F.3d. at 326-330. 229 Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1055, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992) (Blackmun J., dissenting).


pie.”230 Nuisance law “straddles the legal universe, virtually defies synthesis, and generates case law to suit every taste.”231 The Fourth Circuit correctly got to the heart of the matter when it concluded that if we are to regulate greenhouse gas emissions “by the same principles we use to regulate prostitution, obstacles in highways, and bullfights, we will be hard pressed to derive any manageable criteria.”232 Moreover, public nuisance claims in climate change cases are potentially subject to abuse. In other words, they “scapegoat the regulated community by extracting piecemeal relief from those entities for a regulatory failure that rests primarily with the federal government.”233

In its petition for writ of certiorari, the State of North Carolina claimed that the Fourth Circuit’s reasoning “represents no less than a broadside attack on public nuisance law” and that the Fourth Circuit’s logic “impugns the spectrum of conceivable public nuisance actions, leaving nothing of the tort in its wake.” North Carolina fails to realize that these are good developments. Public nuisance is a standardless tort that is particularly ill-suited to address the problems posed by climate change. The Supreme Court should so hold in Connecticut v. American Electric Power.

230 Id. at 1055 n. 19, quoting W. Keeton, et al., PROSSER AND KEETON ON THE LAW OF

TORTS 616 (5th ed. 1984). 231 Id., quoting W. Rodgers, ENVIRONMENTAL

LAW, § 2.4, p. 48 (1986). 232 North Carolina, 615 F.3d at 301. 233 Abate, supra note 176, at 242.

The Misuse of Public Nuisance Law to Address Climate Change

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