What’s happened?

Our update of 10 January 20111 concerned the decision of the US Supreme Court on 6 December 2010 in American Electric Power Co. v Connecticut2 to allow an appeal from the decision of the US Court of Appeals (Second Circuit) in Connecticut v American Electric Power Company.3

On 20 June 2011, the US Supreme Court delivered its decision in that appeal.4

What’s the outcome?

The US Supreme Court upheld the Court of Appeal’s exercise of jurisdiction allowing climate change nuisance litigation but held that, in this particular case, this jurisdiction had been ‘displaced’ by federal legislation.

Who needs to know?

Emitters of greenhouse gases.


The case concerns whether states and private parties can sue in nuisance for damages for injury due to greenhouse gases (GHGs) and for related injunctions.

The US Court of Appeals (Second Circuit) held that the plaintiffs—eight states, the City of New York, and three non-profit entities—had standing to seek, on the basis of a claim of public nuisance, an injunction against six electrical utility companies to restrict their GHG emissions. The Court of Appeals also held that the plaintiffs’ claim was not barred by the so-called ‘political question doctrine’ (which bars US courts from deciding questions that have been committed for decision to the executive or legislative branches).

The US Supreme Court ultimately dismissed the appeal, but not on either of these grounds.

Rather, the dismissal was based on the finding that, in the Federal Clean Air Act, Congress had entrusted the US EPA (and not Federal Courts) to decide how GHGs should be regulated and that the plaintiffs’ claim had therefore been ‘displaced’ by congressional action.

Justice Ginsburg delivered the 8-0 opinion of the court. A central passage in the opinion is as follows:

The [defendants] contend that the federal courts lack authority to adjudicate this case. Four members of the [Supreme Court] would hold that at least some plaintiffs have…standing…; and further, that no other threshold obstacle bars review. Four members of the [Supreme Court]…would hold that none of the plaintiffs [has]…standing. We therefore affirm, by an equally divided Court, the Second Circuit’s exercise of jurisdiction….

Justice Ginsberg does not name the members of the court who found that the plaintiffs (or some of them) have standing and that there were no other threshold obstacles to review. It appears that they are Justices Ginsburg, Breyer, Kagan and Kennedy and that this group rejects both ‘lack of standing’ and the ‘political question doctrine’ as defences to proceedings in nuisance for greenhouse-related damage.

As mentioned in our 10 January 2011 update, Justice Sotomayor was ‘recused’ (excluded) from the case because she was on the panel which delivered the decision in the Court of Appeal. It therefore appears that, if another case emerged from which she was not ‘recused’ (excluded) and in which there had not been ‘displacing’ congressional action, there would be a 5-4 majority on the US Supreme Court to allow climate change nuisance litigation to be brought, at least by those plaintiffs—US states—which have standing under the doctrine in Massachusetts v. EPA 549 U. S. 497.

This is particularly important for the question of whether federal legislation ‘displaces’ common law claims brought in state courts. The Supreme Court specifically left this question open. Judging by what the Supreme Court has held in other cases, it is possible that a state court may hold that state-based public greenhouse nuisance claims are not ‘displaced’ and, on the authority of the Supreme Court’s 20 June 2011 decision, can be heard.

Implications for Australian courts

There have been no Australian tort actions related to climate change to date and, although Australia lacks some of the constitutional doctrines that have impeded such actions in the United States, such actions in Australia still face significant hurdles, particularly: standing, causation and the utility of granting the relief sought.

In Australia, the issue of standing appears able to be addressed by framing an action in public nuisance. An action in public nuisance may be framed where the defendant’s conduct unreasonably endangers the health, property or comfort of the public generally or obstructs the public in the exercise of its rights. Importantly, such an action does not require a plaintiff to establish that the plaintiff’s private right to the use and enjoyment of land has been specially affected by the defendant’s conduct.

However, there is still the difficult issue of causation—in particular, the fact that many factors other than a defendant’s actions are contributory to global warming—and the related issue of the utility of any remedy. However, the Supreme Court’s decision strongly indicates that a court has jurisdiction to hear argument on, and to determine, these issues where no legislative ‘displacement’ of the common law has occurred.

The full implications of the Supreme Court’s decision await the results of its application in appropriate proceedings in a lower US federal court or in a state court.