TCS Daily

Heated Nuisance Suits

By Jonathan H. Adler - July 27, 2004 12:00 AM

Last week, several state attorneys general and the city of New York announced a lawsuit against five of the nation's largest utilities seeking reductions in their carbon dioxide emissions. AGs from eight states -- California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont, and Wisconsin -- and the City of New York, filed suit against American Electric Power, Cinergy, the Southern Company, Xcel Energy, and the Tennessee Valley Authority. According to the suit, these utilities are contributing to a "public nuisance" under federal common law by emitting greenhouse gases.

Unlike prior government suits against major industries, the state AGs are not seeking monetary relief. Instead they seek a court order compelling the five utilities to begin reducing carbon dioxide emissions over the coming years at 174 power plants located in 20 states. As Connecticut AG Dick Blumenthal described the suit, "Think tobacco, without the money." Led by Blumenthal and New York AG Eliot Spitzer, the suit is an effort to bypass the legislative process at both the state and federal level and force the regulation of greenhouse gases in federal court.

This is not the first time state attorneys general have filed federal lawsuits over global warming. Last year, many of the same AGs filed two separate lawsuits against the Environmental Protection Agency (EPA) seeking to force federal regulation of greenhouse gases. According to the AGs, the EPA has a statutory obligation both to regulate carbon dioxide as a "pollutant" under the Clean Air Act, as well as to require greenhouse gas emission reductions when industrial facilities upgrade their pollution controls. Perhaps recognizing that both of these suits are long shots under current law, the state AGs upped the pressure with this latest lawsuit.

Despite their claims, a federal common law cause of action for a public nuisance created by carbon dioxide emissions is speculative, at best. While the law of public nuisance can be used to address many environmental concerns, global warming is not among them. Federal common law claims for interstate pollution are largely preempted by federal environmental laws, leaving the states with a tremendous burden in demonstrating that this suit should go forward. If global warming were a nuisance, the responsible parties would be all emitting facilities, not just a handful of large utilities.

Nuisance is a longstanding common law cause of action that can be brought against environmental polluters. In one of the earliest nuisance cases, a landowner brought suit against his neighbor who owned a pig farm. The noise and odors of the operation infringed upon the landowner's right to the peaceable enjoyment of his own property and was declared a nuisance by the court. Therefore the pig farmer was required to clean up his operations or move somewhere else. Since then, the law of private nuisance has proven quite effective at addressing many pollution concerns, particularly where one landowner engages in polluting activity that harms the property of his neighbor.

"Public" nuisance, by contrast, involves a polluting activity that interferes with the rights of the community at large. Whereas a private nuisance suit would be brought by an individual landowner, public nuisance suits are typically brought by government officials to vindicate the interests of the local community as a whole. Thus, state attorneys general can, and sometimes have, brought suits against industrial polluters alleging their emissions are harming communities downstream or downwind. Where causation is shown and the nuisance is proved, courts have ordered the polluting companies to pay damages, clean up, or simply shut down.

Nuisance law is readily applicable to many traditional pollutants, but it is a stretch to apply it to climate change. To the extent human activity is warming the climate, it is the result of literally millions of sources, not just a handful of industrial firms. The only relevant measure of greenhouse gas "pollution" is the global concentration of gases in the atmosphere; there is no "downwind" community suffering the harms of "upwind" facilities. To mitigate or prevent climate change, emission reductions must be imposed worldwide, not just in a given country, let alone a handful of states. Lessening emissions in one state or even twenty will have no impact. The state AGs are unable to claim that the targeted facilities are causing or significantly contributing the alleged nuisance of global warming because these utilities' relative contribution to global carbon dioxide emissions is miniscule. The alleged "nuisance" of global warming cannot be laid at the feet of a few select firms.

Spitzer claims "accepted and unambiguous law" supports the state AGs' position, but federal courts have held otherwise. For over twenty years federal courts have found that federal pollution control statutes preempt federal common law claims challenging interstate air or water pollution as a public nuisance. According to James Sevinsky, then-assistant New York attorney general for environmental protection, two landmark Supreme Court cases in 1981 "virtually gutted the federal common law of nuisance as an environmental remedy." As explained by a recent survey of nuisance law, "the Clean Water Act (and by inference the Clean Air Act) has preempted both federal nuisance law and the nuisance law of the affected state."

If the state AGs have a viable nuisance claim, it is only under state law -- Spitzer's bluster about "unambiguous" and "well-established" federal common law basis for their suit notwithstanding. To bring a public nuisance claim against facilities in other states, the state AGs must allege these utilities are committing nuisances as defined by the law in the states in which they are located. Perhaps for this reason the state AGs' complaint devotes several pages to a second, state-law based claim for relief, alleging that each and every facility owned by the five utilities violates the nuisance law of its own state. Interestingly enough, only one of the AGs own states, Wisconsin, is home to any of the facilities targeted by the suit.

But even if a court accepted the claim that climate change is a public nuisance and the targeted utilities are responsible, the state AGs are not seeking a remedy that would have any effect on global warming whatsoever. The complaint calls for three percent emission reductions per year over the next decade from the affected facilities. This would produce less than a three percent reduction in total U.S. emissions of greenhouse gases and would not mitigate future predictions of warming in the least. To put this in perspective, consider that the suit seeks emission reductions totaling less than one-tenth of the reductions called for under the Kyoto Protocol in the United States alone. Complete global compliance with Kyoto would have a barely perceptible impact on predicted changes in temperature over the next century. By comparison, the remedy sought by the state AGs is an even smaller drop in the bucket. In sum, this is a nuisance suit that has no prospect whatsoever of abating the alleged nuisance.

If the state AGs' newest climate suit has little chance of victory in court, and would not do anything to mitigate, let alone forestall, global warming even if successful, why are the AGs in court? There are several possibilities. For starters, the state AGs may be hoping the suit and attendant press coverage will force a settlement. Announcing the suit, Spitzer said that litigation was a last resort, and that he hoped the targeted utilities would approach the AGs to settle. "If we can resolve this before we get to court, wonderful," Spitzer commented. This is an increasingly familiar tactic. Several of the state AGs involved, most notably Blumenthal and Spitzer, have made a career out of filing ambitious suits against large corporations in an effort to grab headlines and force a negotiated settlement. Major corporations tend to be risk averse and are often reluctant to roll the dice on high-stakes, taxpayer-financed litigation. Better to seek a negotiated settlement, cap potential losses, and get out of the spotlight.

The state AGs may also be seeking favorable press coverage -- AG, after all, often stands for "aspiring governor." By filing this suit the state AGs get to posture as defenders of the environment against evil polluting corporations. They get front-page headlines, editorials, and their time to shine. If by some chance the suit is successful or settles quickly, the AGs are instant heroes. More likely it will drag on for months, if not years, before reaching a final judgment. By that time the state AGs will have moved on to other targets, if not other public offices, and any legal losses will be buried in the news. Thus, as a gamble, the suit is a no lose proposition -- especially since their targets are almost exclusively in other states.

The state AGs could have targeted facilities in their own states, bringing a series of state-law-based common law nuisance claims, but that would have meant imposing costs at home. The same would be true had the state AGs called for legislation to require significant emission cuts -- something few states have done. Instead, they've opted to file suit against utilities in other parts of the country, demanding "protection" from climate change, while showing no willingness to bear the attendant costs themselves. With only one exception, none of the states represented in the suit is home to any of the facilities owned by the targeted facilities. As with other environmental suits filed by the state AGs, here they seek to have others bear the costs of their environmental preferences.

Even more cynically, one could suspect the suit is supported by some as a vehicle for Democratic politicians to assail President Bush's alleged lack of leadership on the environmental front. While no elected politician is eager to embrace Kyoto, or the emission reductions it entails, the President's critics take every opportunity to criticize his "failure" to adopt more aggressive policies on climate change. A high-profile lawsuit, filed in an election year, provides the perfect opportunity to attack the President's position without having to put forward a policy alternative.

Since 1990, Congress has considered adopting limits on greenhouse gases several times, rejecting such proposals each and every time. There is no national consensus supporting costly measures to reduce greenhouse gas emissions, and no statutory basis for imposing such restrictions in federal court. A judicial decision requiring major utilities to curtail their emissions of greenhouse gases would have a nationwide economic impact. It is not the sort of policy decision that should be made by a handful of state AGs or a federal judge. If the state AGs think local action on climate change is required, they are free to file court cases in their own states or seek legislative action. In the meantime, they should refrain from making heated nuisances of themselves in federal court.

Jonathan H. Adler is associate professor of law and associate director of the Center for Business Law and Regulation at Case Western Reserve University. He is also a Julian Simon Summer Research Fellow at the Property and Environment Research Center (PERC) in Bozeman, MT and a contributing editor to National Review Online. He is the author or editor of several books, including The Costs of Kyoto: Climate Change Policy and Its Implications.


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