Last week, the 2nd Circuit Court of Appeals handed down a decision that promises to alter the environmental law landscape.
In the decision, the court determined that plaintiffs could sue a power generator under federal nuisance law for releasing greenhouse gases that contribute to global warming. In making its ruling, the 2nd circuit overturned the district court, which had declined to hear the case after it held that the claims presented non-justiciable political questions. The response to the 2nd Circuit opinion was fairly predictable, with
environmental groups praising the court for creating a new remedy for
pollution complaints and industry groups condemning the decision for
opening companies up to greedy plaintiffs' attorneys whose
money-grubbing crusades will end up raising prices for everyone.
the same old refrain from both sides, but the real winner this time
might be the Environmental Protection Agency and Congress, Jennifer
Koons writes in the New York Times.
Usually, industry groups challenge new EPA regulations until the agency
capitulates or a more sympathetic administration takes over and
With this decision, however, the energy industry has a strong
motivation to accept regulations rather than face an endless succession
of nuisance lawsuits.
The energy industry now also finds itself in the unusual position of
sharing a goal with environmental groups: a federal legislative
standard to govern greenhouse gas emissions in the global warming
Until that happens, though, Steve Jones, chairman of Marten Law Group's
litigation department, warns that nuisance lawsuits, like the planet,
will be heating up over time.