Will Connecticut’s Win In Second Round Of Public Nuisance Lawsuit Open Floodgates For Global Warming Claims?

Connecticut has taken center stage as lead plaintiff in round two against six power companies for public nuisance over global warming.  In Connecticut v. American Electrical Power Co., eight States brought a lawsuit to stop ongoing contributions to global warming.  The States brought the suit under a theory of common law nuisance.  Although the case was dismissed at the trial level, the Second Circuit Court of Appeals overturned the decision and held that the States can pursue their claims for federal common law nuisance.

This case has been watched closely ever since it was filed in 2004 and argued in 2006.  The court of appeals decision allowing the case to proceed now has caused some very different reactions amongst attorneys, environmentalists and business leaders.   

The Global Climate Law Blog offered its comments on the decision noting that the case is long from over and future battles in the case will likely involve causation.  Hannah McCrea of The Grist noted  in a very detailed review of the case that it was a historic ruling to "be celebrated and utilized by environmentalists."  

Lisa Rickard, president of the U.S. Chamber Institute for Legal Reform (representing 3 million businesses) issued this statement claiming the decision will "further line the pockets of trial lawyers."  She opined that the decision to permit public nuisance claims to go forward could lead to mass tort claims against businesses for contributions to global warming.  Seth Jaffe an environmental attorney with Foley Hoag offered a good legal review concluding that a number of defenses remain in the case for the power companies but environmental plaintiffs relying on nuisance claims may get new life from the decision.

My own take is that the case represents a fascinating intersection of law, politics, and activism surrounding the global climate change debate.   The case is being dissected all over the country with predictions of mass tort actions against businesses, congressional legislation, and new EPA regulations.  My own prediction is that the litigation appears far from over and an appeal to the United States Supreme Court is likely.  Any adverse impact to Connecticut businesses for nuisance claims is not at all clear at this point.  


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