Plaintiffs seeking to impose civil liability on major emitters of greenhouse gases have been pressing their claims under the rubric of common law nuisance over the last several years.While the results of these efforts were initially mixed, the last two years have seen the tide clearly turn against such nuisance theories.

The first and only case to reach the US Supreme Court was American Electric Power Company, Inc. v. Connecticut, 131 S.Ct. 2527 (2011), which dealt a decisive blow to the plaintiffs’ theory of relief, finding that the Clean Air Act (CAA) had displaced the federal common law of nuisance with respect to climate change claims for injunctive relief. But the Court’s opinion left the door open for subsequent plaintiffs to argue that their claims were distinguishable based on either the relief requested (damages versus injunctive relief) or on the source of the rights being enforced (federal common law versus state common law claims). Since American Electric, however, neither distinction has found much success.

The argument that American Electric could be distinguished based on the nature of the relief sought was rejected by the Ninth Circuit this September in Native Village of Kivalina v. Exxon Mobil Corp., 2012 U.S. App. LEXIS 19870; 42 ELR 20195 (9th Cir. 2012). In that case, a city and other plaintiffs sued several oil and power companies under the federal common law of public nuisance for damages allegedly caused by the reduction of sea ice due to global climate change that had shielded the city from flooding and erosion. Plaintiffs argued that, while federal injunctive relief was displaced by the CAA under the American Electric decision, a gap remained for federal common law to fill with respect to private injuries caused by global climate change because the CAA did not provide for private damages suits. The Ninth Circuit rejected the argument, finding that prior Supreme Court precedent demonstrated that “the remedy asserted is not relevant to the applicability of the doctrine of displacement.” As a result, American Electric constituted “direct Supreme Court guidance” that the plaintiffs’ federal common law nuisance claims, regardless of whether they sought damages or injunctive relief, were displaced by the CAA.

Plaintiffs may still petition for certiorari and the Ninth Circuit is the only circuit court to have addressed this issue at the present time; but barring review and reversal by the US Supreme Court or an en banc review by the Ninth Circuit, however,1 it is likely that plaintiffs will turn their attention to state common law actions rather than continue to pursue federal common law claims in light of the American Electric and Kivalina decisions.

However, with regard to such state law nuisance theories, plaintiffs have also suffered a two significant defeats this year, in Comer v. Murphy Oil USA, Inc., 839 F. Supp. 2d 849 (S.D. Miss. 2012) and Bell v. Cheswick Generating Station, 2012 U.S. Dist. LEXIS 147232 (W.D. Pa. October 12, 2012). In Comer, the plaintiffs filed a class action alleging that the defendant oil, coal, chemical and utility companies had injured the plaintiffs by emitting greenhouse gases that contributed to global warming, which in turn contributed to the ferocity of Hurricane Katrina. The case had originally been filed in 2005, where it was dismissed by the district court on justiciability grounds. This dismissal was reversed by the Fifth Circuit, but due to a procedural quirk the panel decision was vacated and plaintiffs were left with no further recourse in the courts of appeals. The plaintiffs then returned to the district court, refilling the current action, which the district court again dismissed, this time on grounds of res judicata, lack of standing, lack of justiciability, statute of limitations and, most notably, displacement of the plaintiffs’ federal claims and preemption of the plaintiffs’ state law nuisance claims by the CAA. That decision has been appealed and is now before the Fifth Circuit. In Bell, the plaintiffs sought to bring a class action on behalf of people living or owning property within one mile of the defendant’s coal-fired power plant. The plaintiffs sought damages under state common law theories of nuisance, negligence, trespass and strict liability for odors, coal dust and fly ash deposits that the plaintiffs alleged were the result of either improper design or improper operation of the facility. TheWestern District of Pennsylvania dismissed the plaintiffs’ complaint, finding the plaintiffs’ claims preempted by the CAA and the regulations and permits that governed the defendant’s facility.

While plaintiffs initially gained some acceptance of the potential for a federal common law of public nuisance addressing greenhouse gas emissions in both the Second and Fifth Circuits, thosedecisions have since been vacated. Combined with the recent decisions in Kivalina in the Ninth Circuit, and Comer and Bell at the district court level, plaintiffs have now raised and lost the two key questions left open by American Electric.With the appeals process still ongoing in two of these cases, and an appeal possible in the third, it will likely be some time yet before the future of greenhouse gas nuisance litigation become clear. Nonetheless, such recent decisions represent a turn in the tide.