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Environmental Alert: The Second Circuit Reinstates Global Warming Federal Nuisance Claims Against Utilities: Connecticut, et al. v. American Electric Power Co., Inc., et al.

Article Excerpt
On September 21, 2009, in a 140-page opinion, the Second Circuit Court of Appeals reversed the district court's dismissal of global warming federal nuisance claims brought by eight states, the City of New York, and various environmental groups against six electric power companies in the case of Connecticut, et al. v. American Electric Power Co., et al.1 The plaintiffs are seeking abatement of defendants' emissions of greenhouse gases that allegedly contribute to the public nuisance of global warming. In 2005, the district court held that the plaintiffs' claims presented a non-justiciable political question and dismissed the action.

New York Attorney General Andrew Cuomo released a statement: "This is a game-changing decision for New York and other states, reaffirming our right to take direct action against global warming pollution from power plants. Today's decision allows us to press this crucial case forward and address the dangers posed by these coal-burning power plants." California Attorney General Jerry Brown called the decision a "critical milestone."

The decision must be welcomed by the plaintiffs in another global warming suit, Native Village of Kivalina v. Exxon Mobil Corporation, et al., pending in the Northern District of California, since motions to dismiss on federal nuisance claims are under advisement. Indeed, on September 23, 2009, the plaintiffs in Kivalina moved for leave to submit the recent decision of American Electric Power.

The American Electric Power decision may mark the beginning of a surge of climate-related litigation that some prognosticators have warned will be the "new asbestos" and could prompt administration officials, Congress, and industry and environmental groups to reach agreement to pass preemptive federal greenhouse gas legislation....