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Second Circuit Reinstates Nuisance Suit By Eight States Against Coal Burning Power Plants

On Monday the Second Circuit Court of Appeals reinstated an action by eight states, the City of New York and three land trusts challenging the levels of carbon dioxide emissions by coal burning power plants under a theory of nuisance. In State of Connecticut v. American Electric Power Company, Inc. the plaintiffs claim that the carbon dioxide emissions from these coal burning plants contribute to global warming and should be ultimately reduced.

The basis for the claims was stated by the Court as:

“Plaintiffs claim that global warming, to which Defendants contribute as the “five largest emitters of carbon dioxide in the United States and . . . among the largest in the world,” Connecticut v. Am. Elec. Power Co., 406 F. Supp. 2d 265, 268 (S.D.N.Y.2005), by emitting 650 million tons per year of carbon dioxide, is causing and will continue to cause serious harms affecting human health and natural resources. They explain that carbon dioxide acts as a greenhouse gas that traps heat in the earth’s atmosphere, and that as a result of this trapped heat, the earth’s temperature has risen over the years and will continue to rise in the future.”

Reversing the lower court the Circuit Court found:

” We hold that: (1) Plaintiffs-Appellants’claims do not present non-justiciable political questions; (2) Plaintiffs-Appellants have standing to bring their claims; (3) Plaintiffs-Appellants state claims under the federal common law of nuisance; (4) Plaintiffs-Appellants’ claims are not displaced; and (5) the discretionary function exception does not provide Defendant-Appellee Tennessee Valley Authority with immunity from suit. Accordingly, we VACATE the judgment of the district court and REMAND for further proceedings.”