On September 21, 2009, a panel of the United States Court of Appeals for the Second Circuit issued a decision that may dramatically shift the liability profile of every entity associated with notable greenhouse gas (GHG) emissions—potentially including utilities; coal, natural gas, and oil companies; industrial gas users and manufacturers; entities with significant vehicle fleets; and auto manufacturers. In Connecticut v. American Electric Power Co., the court held that federal courts are competent to hear—and states, municipalities, and private entities uniquely vulnerable to climate change may bring—federal public nuisance claims seeking to enjoin the activity of an entity whose activities contribute to climate change. Additionally, the court’s rationale could very easily be expanded to allow suits for damages. And, according to the court, these claims are not displaced by the Clean Air Act, even though GHGs may be subject to Clean Air Act regulation. Consequently, entities concerned about the potential costs to their business of reducing their GHG footprint may have more to fear than bureaucrats and legislators in Washington, D.C. Although the case may be subject to further appeals, it is potentially game-changing.
To review a copy of the decision, click here: http://www.ca2.uscourts.gov/decisions/isysquery/990bd530-ecba-4900-9183-f02781400dc1/2/doc/05-5104-cv_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/990bd530-ecba-4900-9183-f02781400dc1/2/hilite/.