{ "id": "R41496", "type": "CRS Report", "typeId": "REPORTS", "number": "R41496", "active": false, "source": "EveryCRSReport.com, University of North Texas Libraries Government Documents Department", "versions": [ { "source": "EveryCRSReport.com", "id": 420105, "date": "2011-08-16", "retrieved": "2016-04-07T00:36:48.303417", "title": "Common-Law Climate Change Litigation After American Electric Power v. Connecticut", "summary": "Note: Despite this report being archived, the reader may find updated treatment of the topics covered herein in CRS Report R42613, Climate Change and Existing Law: A Survey of Legal Issues Past, Present, and Future, by Robert Meltz. See especially sections I, II.H., and III.A.\nCongressional inaction on climate change has led concerned parties to explore other ways to address climate change\u2014including lawsuits seeking to establish climate change impacts as a common law nuisance. The prospects for these common law suits are limited, however, owing in part to the unsuitability of private litigation for dealing with global problems like climate change. Recently, the outlook for federal common-law suits seeking injunctive relief vis-a-vis climate change became particularly dim. On June 20, 2011, the Supreme Court ruled in American Electric Power Co., Inc. v. Connecticut that given EPA\u2019s Clean Air Act authority over greenhouse gas (GHG) emissions\u2014affirmed by the Court a few years ago\u2014the federal common law of nuisance in the area of climate change is \u201cdisplaced.\u201d Federal courts may not use federal common law to add their own judge-made GHG emission standards to those of EPA.\nThe displacement of federal common law by American Electric Power is only one of three threshold issues that have bedeviled lawsuits seeking to establish climate change as a common law nuisance. The standing inquiry requires a plaintiff in federal court to show actual or imminent injury caused by the defendant, and the likelihood that the injury will be redressed by the requested relief. Each of these factors can pose difficulties for the climate-change plaintiff. Similarly, the political question doctrine has led some courts to dismiss common-law climate change suits on the ground that the issue is better left with the political branches.\nAmerican Electric Power raises several questions. First, with federal common law displaced in the area of climate change, are state common law claims viable? Two threats to such claims are the possibility of preemption by the Clean Air Act (the sounder argument is against preemption), and the influence of the Supreme\u2019s Court\u2019s aversion to judge-made law in the climate change area so evident in American Electric Power. A second question is whether American Electric Power displaces climate-change-based federal common law actions when the remedy sought is monetary rather than injunctive. Finally, if Congress eliminates EPA authority over GHG emissions and is silent as to federal common law actions, does federal common law cease to be displaced so that such actions are again possible?\nIn addition to American Electric Power, there are two other active cases raising common law nuisance claims as to climate change. In Village of Kivalina v. ExxonMobil Corp., a coastal Eskimo village is suing energy companies alleging that their GHG emissions have contributed to shoreline erosion, requiring relocation of the village. In Comer v. Murphy Oil, Gulf coast landowners are suing energy and chemical companies asserting that their GHG emissions intensified Hurricane Katrina, adding to plaintiffs\u2019 property damage. Both cases raise the above-noted issue whether American Electric Power applies to actions seeking monetary damages.\nA second common law theory recently has entered the fray. Since May 2011, either a suit or rulemaking petition has been filed in every state arguing that the respective state has a \u201cpublic trust\u201d duty to the atmosphere that requires it to address climate change.", "type": "CRS Report", "typeId": "REPORTS", "active": false, "formats": [ { "format": "HTML", "encoding": "utf-8", "url": "http://www.crs.gov/Reports/R41496", "sha1": "fcca0e23773de6059f970a398dd5c0733f358b9f", "filename": "files/20110816_R41496_fcca0e23773de6059f970a398dd5c0733f358b9f.html", "images": null }, { "format": "PDF", "encoding": null, "url": "http://www.crs.gov/Reports/pdf/R41496", "sha1": "6bc52da37f3b5e7abf6d71d9c227a912b6f671cb", "filename": "files/20110816_R41496_6bc52da37f3b5e7abf6d71d9c227a912b6f671cb.pdf", "images": null } ], "topics": [] }, { "source": "University of North Texas Libraries Government Documents Department", "sourceLink": "https://digital.library.unt.edu/ark:/67531/metadc40110/", "id": "R41496_2011May9", "date": "2011-05-09", "retrieved": "2011-08-27T10:13:38", "title": "Litigation Seeking to Establish Climate Change Impacts as a Common Law Nuisance", "summary": "There are five common law/nuisance suits addressing climate change now or formerly active. Of the three no longer active, none were successful. Of the two still-active cases, one has recently leaped to center stage because the Supreme Court agreed to hear it. In Connecticut v. American Electric Power Co., Inc., eight states sued five utility companies alleged to be emitting the most GHGs in the nation through their coal-fired electric power plants. Following a Second Circuit decision, the Supreme Court agreed on December 6, 2010, to resolve threshold issues in this case.", "type": "CRS Report", "typeId": "REPORT", "active": false, "formats": [ { "format": "PDF", "filename": "files/20110509_R41496_58433eee8394731cab306caa7c8d1cda6395e39b.pdf" }, { "format": "HTML", "filename": "files/20110509_R41496_58433eee8394731cab306caa7c8d1cda6395e39b.html" } ], "topics": [ { "source": "LIV", "id": "Climatic changes", "name": "Climatic changes" }, { "source": "LIV", "id": "Global climate change", "name": "Global climate change" }, { "source": "LIV", "id": "Global warming", "name": "Global warming" }, { "source": "LIV", "id": "Air pollution", "name": "Air pollution" }, { "source": "LIV", "id": "Litigation", "name": "Litigation" }, { "source": "LIV", "id": "Government litigation", "name": "Government litigation" } ] }, { "source": "University of North Texas Libraries Government Documents Department", "sourceLink": "https://digital.library.unt.edu/ark:/67531/metadc491395/", "id": "R41496_2010Dec10", "date": "2010-12-10", "retrieved": "2015-01-27T19:40:46", "title": "Litigation Seeking to Establish Climate Change Impacts as a Common Law Nuisance", "summary": "This report discusses recent legislative initiatives seeking to establish climate change impacts as a common law nuisance. The report explains what private and public nuisances are, the issues faced by policymakers when litigating a climate-change/nuisance suit, and also discusses five climate-chance/nuisance suits that are now or formerly active, as a basis of comparison. The report also explores arguments of those both for and against addressing the complex issue of climate change through common law suits.", "type": "CRS Report", "typeId": "REPORT", "active": false, "formats": [ { "format": "PDF", "filename": "files/20101210_R41496_f1e5a3a30ca1e18c213e510f239dafcead4a7536.pdf" }, { "format": "HTML", "filename": "files/20101210_R41496_f1e5a3a30ca1e18c213e510f239dafcead4a7536.html" } ], "topics": [ { "source": "LIV", "id": "Environmental law and legislation", "name": "Environmental law and legislation" }, { "source": "LIV", "id": "Environmental protection", "name": "Environmental protection" }, { "source": "LIV", "id": "Law", "name": "Law" }, { "source": "LIV", "id": "Greenhouse gases", "name": "Greenhouse gases" }, { "source": "LIV", "id": "Global climate change", "name": "Global climate change" } ] }, { "source": "University of North Texas Libraries Government Documents Department", "sourceLink": "https://digital.library.unt.edu/ark:/67531/metadc29637/", "id": "R41496_2010Nov19", "date": "2010-11-19", "retrieved": "2010-12-04T14:26:25", "title": "Litigation Seeking to Establish Climate Change Impacts as a Common Law Nuisance", "summary": "This report discusses recent legislative initiatives seeking to establish climate change impacts as a common law nuisance. The report explains what private and public nuisances are, the issues faced by policymakers when litigating a climate-change/nuisance suit, and also discusses five climate-chance/nuisance suits that are now or formerly active, as a basis of comparison. The report also explores arguments of those both for and against addressing the complex issue of climate change through common law suits.", "type": "CRS Report", "typeId": "REPORT", "active": false, "formats": [ { "format": "PDF", "filename": "files/20101119_R41496_efc9ed72b6504cb7fb7af96697d78c7d6be5ad0c.pdf" }, { "format": "HTML", "filename": "files/20101119_R41496_efc9ed72b6504cb7fb7af96697d78c7d6be5ad0c.html" } ], "topics": [ { "source": "LIV", "id": "Law", "name": "Law" }, { "source": "LIV", "id": "Actions and defenses", "name": "Actions and defenses" }, { "source": "LIV", "id": "Air pollution", "name": "Air pollution" }, { "source": "LIV", "id": "Climatic changes", "name": "Climatic changes" }, { "source": "LIV", "id": "Global climate change", "name": "Global climate change" }, { "source": "LIV", "id": "Environmental protection", "name": "Environmental protection" }, { "source": "LIV", "id": "Environmental law and legislation", "name": "Environmental law and legislation" }, { "source": "LIV", "id": "Greenhouse gases", "name": "Greenhouse gases" } ] } ], "topics": [] }