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How exciting!In a landmark decision, the US Second Circuit has agreed that victims of climate change can sue electric utilities in nuisance for the emissions from their coal-fired power plants. This should give polluters in both Canada and the US a strong incentive to push for national statutes on greenhouse gas emissions, rather than fight thousands of cases in the courts.
Until now, most courts (including those in Canada) have ruled that climate change is primarily a political matter, and not the proper responsibility of courts and judges. (In legal terms, that climate change is “not justiciable”.) Like our federal government, polluters typically argue that:

global warming is a world-wide problem, federal courts are not the proper venue for this action, nor could the courts redress the injuries about which Plaintiffs complain because global warming will continue despite any reduction in Defendants’ emissions

Now, however, in Connecticut v. American Electric Power, the powerful Second Circuit has ruled that the ordinary tort law of nuisance can, and does apply to greenhouse gas emissions. Those who burn coal create emissions known to have adverse effects (climate change) on others. These are the very sorts of harm that tort law is designed to control.

In this case, seven US coastal states and the City of New York are seeking an order in federal court, requiring the seven largest US coal-fired electric utilities to slash their greenhouse gas emissions. In a parallel lawsuit, three major non-governmental organizations that own and protect sensitive environmental lands sue the same defendants for the same relief. The defending utilities brought a summary judgment motion to strike out the claim, and were successful (on the non-justiciable ground) in the District Court. The plaintiffs appealed, and have now won a resounding victory.

The court carefully dissected and rejected each of the defendants’ arguments. On justiciability, the Second Circuit feels competent to adjudicate environmental cases, such as nuisance, between defined parties. British, American and Canadian courts have over a century of experience adjudicating complex common law public nuisance cases on air and water pollution.  The courts also feel able to apply established tort rules to new and complex factual situations and have done so on many occasions. Climate change litigation, they say, is not necessarily different:

[N]owhere in their complaints do plaintiffs ask the court to fashion a comprehensive and far reaching solution to global climate change, a task that arguably falls within the purview of the political branches.  Instead, they seek to limit emissions from six domestic coal fired electricity plants on the ground as such emissions constitute a public nuisance that they allege has caused, is causing and will continue to cause them injury. …The fact that a case may present complex issues is not a reason for … courts to shy away …

The political implications of any decision involving possible limits on carbon emissions are important in the context of global warming, but not every case with political overtones is non-justiciable.

This decision should send a chill through owners, operators and investors in coal-fired plants across the US, and may make them decide that they prefer a federal law on greenhouse gas emissions to fighting in the courts. That, in turn, should give President Obama a boost in the run up to Copenhagen. And since Canadian courts often follow the US lead on tort law, oil sands companies and other prominent emitters here should also be worrying about their liability.

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