Friday, September 25, 2009

U.S. Chamber Concerned With 2nd Circuit Public Nuisance Ruling

Sep 23: Calling it an "alarming reversal of established precedent, the U.S. Chamber of commerce is expressing real concern over the U.S. Court of Appeals, Second Circuit decision in Connecticut v. American Electric Power which upheld public nuisance claims in climate change litigation [See WIMS 9/22/09].

The major 139-page decision regarding citizen and government enforcement of greenhouse gas emissions is being hailed as a "landmark ruling" by environmental organizations. Interestingly, the case was finally decided by a two judge panel that noted, "The Honorable Sonia Sotomayor, originally a member of the panel, was elevated to the Supreme Court on August 8, 2009. The two remaining members of the panel, who are in agreement, have determined the matter."

The ruling justices said in their opinion, "With regard to air pollution, particularly greenhouse gases, this case occupies a niche similar to the one Milwaukee I occupied with respect to water pollution. With that in mind, the concluding words of Milwaukee I have an eerie resonance almost forty years later. To paraphrase: 'It may happen that new federal laws and new federal regulations may in time pre-empt the field of federal common law of nuisance. But until that comes to pass, federal courts will be empowered to appraise the equities of the suits alleging creation of a public nuisance' by greenhouse gases. . ."

Commenting on the ruling, Lisa Rickard, President of the U.S. Chamber Institute for Legal Reform said, “We are deeply troubled that the Second Circuit has chosen to ignore well-settled law and allowed the plaintiffs’ lawyers’ novel public nuisance claims to proceed. For the better part of the decade, key players within the plaintiffs’ bar have been aggressively advancing a twisted use of the public nuisance legal theory -- an 800-year-old legal concept historically applied to unreasonable interference with public rights -- as an avenue for new mass tort litigation to address issues not designed for judicial resolution. While courts have rightly repudiated this flawed legal scheme, America’s lawsuit industry needs only one precedent-setting victory to open up a public nuisance can of worms.

"Unfortunately, the Second Circuit’s decision to allow public nuisance claims to proceed against businesses for their contributions to global warming may be just the break the trial lawyers need to press ahead with their liability expanding crusade. If this decision is allowed to reverse the judicial trend, it will help further line the pockets of trial lawyers, but it will come at the expense of virtually every U.S. consumer and employer.”

Plaintiffs in thee case involved the states of CT, NY, CA, IA, NJ, RI, VT, and WI plus New York City, Open Space Institute, Inc., Open Space Conservancy and the Audubon Society of New Hampshire. Defendants included: American Electric Power Company, Inc., American Electric Power Service Corporation, Southern Company, Tennessee Valley Authority, Xcel Energy, Inc., and Cinergy Corporation.

Access the statement from the U.S. Chamber (
click here). Access the complete opinion (click here).