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The 2nd Circuit Declares Global Warming a Nuisance

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By Kevin Fayle on September 29, 2009 3:04 PM

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.

It's 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 withdraws them. 

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 context.

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.

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