The Return of Public Nuisance - NuisanceLaw.com
Last Monday The United States Court of Appeals for the Second Circuit reversed the dismissal of a public nuisance claim filed by various public and private entities against operators of coal fired electric plants in Connecticut v. American Electric Power Co. Inc. In making the decision the court concluded that the claims did not involve "political questions" that were better suited for the legislature to address.
Despite the fact that the case concerns international and national global warming issues, the court characterized the case as "ordinary tort case" with the action arising from emmissions from local plants. In addition, the court applied reduced standing requirements and ignored that fact there is statutory regulation already in place for power plants.
This decision marks a comeback for the public nuisance tort cases that state courts have overwhelmingly dimissed. As one commentator writes "It is ironic, however, that the phenomenon of public nuisance litigation, which so recently was 'on the ropes' after being rejected by the highest courts of several states, is now being reinvigorated by our federal judiciary."
Also interesting is the court's observation that "as an alternative to their federal claims, that defendants were liable under the statutory and/or common law of public nuisance of each state where fossil-fueled fired electric generating facilities are, at a minimum, located." The court then contradicts itself stating "Accordingly, since we hold that the federal common law of nuisance applies in this case, we do not address the States' and Trusts' alternative claims based on state public nuisance law." (Connecticut Opinion, p. 138, emphasis added.)