Plaintiffs seeking to impose civil liability on major emitters of greenhouse gases have been pressing their claims under the rubric of common law nuisance over the last several years.  While the results of these efforts were initially mixed, the last two years have seen the tide clearly turn against such nuisance theories.

The first and only case to reach the United States Supreme Court has been American Electric Power Company, Inc. v. Connecticut (“American Electric”), which   dealt a decisive blow to the plaintiffs’ theory of relief, finding that the Clean Air Act had displaced the federal common law of nuisance with respect to climate change claims.  But, the Supreme Court’s opinion left the door open for subsequent plaintiffs to argue that their claims were distinguishable based on either the relief requested (damages versus injunctive relief) or on the source of the rights being enforced (federal common law versus state common law claims).  However, since American Electric, neither distinction has found much success.

Distinguishing American Electric on the nature of the relief sought was rejected by the Ninth Circuit in Native Village of Kivalina v. Exxon Mobil Corp., C.A. No. 09-17490.     In that case, a City and other plaintiffs sued several oil and power companies under the federal common law of public nuisance for damages allegedly caused by the reduction of sea ice due to global climate change that had shielded the City from flooding and erosion.  Plaintiffs argued that, while federal injunctive relief was displaced by the Clean Air Act under the Supreme Court’s American Electric decision, a gap remained for federal common law to fill with respect to private injuries caused by global climate change since the Clean Air Act did not provide for private damages suits.  The Ninth Circuit rejected the argument, finding that prior Supreme Court precedent, demonstrated that “the remedy asserted is not relevant to the applicability of the doctrine of displacement.” As a result, t American Electric constituted “direct Supreme Court guidance” that the plaintiffs’ federal common law nuisance claims, regardless of whether they sought damages or injunctive relief, were displaced by the Clean Air Act. 

Plaintiffs may still petition for certiorari and the Ninth Circuit is the only circuit court to have currently addressed this issue; however, barring review and reversal by the Supreme Court, it is likely that plaintiffs will turn their attention to state common law actions rather than continue to pursue federal common law claims in light of the American Electric and Kivalina decisions.

Yet, with regard to such state law nuisance theories, plaintiffs  have also suffered a significant defeat this year in Comer v. Murphy Oil USA, Inc., Case No. 11-cv-220 (S.D. Miss.).   In that case, the plaintiffs filed a class action alleging that the defendant oil, coal, chemical, and utility companies, had injured the plaintiffs by emitting greenhouse gases that contributed global warming, which in turn contributed to the ferocity of hurricane Katrina.  The case had originally been filed in 2005, where it was dismissed by the district court on justiciability grounds.   This dismissal was reversed by the Fifth Circuit Court of Appeals, but due to a procedural quirk  the panel decision was vacated and plaintiffs were left with no further recourse in the courts of appeals.   The plaintiffs then returned to the district court, refilling the current action, which the district court again dismissed, this time on grounds of res judicata, lack of standing, lack of justiciability, statute of limitations, and, most notably, displacement of the plaintiffs’ federal claims and preemption of the plaintiffs’ state law nuisance claims by the Clean Air Act.   That decision has been appealed and is now before the Fifth Circuit.

While plaintiffs initially gained some acceptance of the potential for a federal common law of public nuisance addressing greenhouse gas emissions in both the Second and Fifth Circuits, those decisions have since been vacated.  Combined with the recent decisions in Kivalina in the Ninth Circuit, and Comer in the Southern District of Mississippi, plaintiffs have now raised and lost the two key questions left open by American Electric.  With the appeals process still ongoing in both cases, it will likely be some time yet before the future of greenhouse gas nuisance litigation become clear. Nonetheless, such recent decisions preview a turn of the tide.