On March 5, 2010, the U.S. Circuit Court of Appeals for the Second Circuit denied rehearing en banc of its decision in Connecticut v. American Electric Power to allow nuisance claims against emitters of greenhouse gases (GHG). The 2nd Circuit’s decision comes approximately one week after the 5th Circuit announced it will reconsider its October ruling, Comer v. Murphy Oil, which had also allowed individuals to sue large emitters of GHG for damage caused by climate change. A third tort case based on GHG emissions, Native Village of Kivalina v. Exxon Mobil Corp., is still pending in the Ninth Circuit. A more complete discussion of these cases may be found here.
The 2nd Circuit issued an opinion in Connecticut on Sept. 21, 2009, ruling that eight states, New York City and environmental groups could bring a public nuisance lawsuit against utilities over their GHG emissions. The decision, along with the Comer and Kivilina cases, is considered a key test of the limits of climate change litigation and whether individuals have standing to sue businesses over their GHG emissions. In Kivalina, the U.S. District Court for the Northern District of California ruled in October that a coastal village in Alaska could not sue energy companies for damage caused by global warming. The ruling explicitly challenged the 2nd Circuit’s opinion in Connecticut. The Plaintiffs in Kivalina have appealed the decision to the 9th Circuit, and opening briefs were due March 11th.
The defendants in the Connecticut v. American Electric Power case are likely to ask the Supreme Court to review the case. If the 5th Circuit, on rehearing, decides to overturn its previous decision, there will be a split in the circuits on whether GHG-emitters can be used in court, thus increasing the chances the Supreme Court will accept review.