Key Points:

Emitters of carbon dioxide and other greenhouse gases should monitor developments in Connecticut v American Electric Power, as it may be a catalyst for Australian activists to also consider the use of public nuisance to address and highlight global warming.

A case that could open the door to litigation against greenhouse gas emitters is back on foot in the United States. State of Connecticut et al. v American Electric Power Company Inc. et al. (2009) WL 2996729 (C.A.2 (N.Y.)) presents an interesting legal avenue to address issues of climate change. The United States Court of Appeals for the Second Circuit has allowed eight American States, New York City and three land trusts to sue six power companies for their contribution to global warming. The defendants are the five largest emitters of carbon dioxide in the United States and are substantial global contributors.

The nuisance of global warming?

The plaintiffs are alleging that five major utilities — American Electric Power Inc, The Southern Co., the Tennessee Valley Authority, Xcel Energy Inc. and Cinergy Corp — have caused a public nuisance by emitting carbon dioxide, which then contributes to global warming and resulting environmental, economic and medical harm.

Damages are not being sought by the plaintiffs; instead, they want the court to order the defendants to cap their carbon dioxide emissions and then reduce those emissions each year by a specified percentage. They say that it's feasible for the defendants (which are voluntarily reducing emissions already) to reduce emissions by 3 percent a year over a 10 year period.

The defendants managed to get the claims struck out, not on the merits but on the basis of non-justiciability - that is, that the case was a political question that could not be determined by the courts.

The Court of Appeal reinstated the case, concluding that the case had political overtones but that this did not prevent the courts from determining it. Furthermore, it said, until federal law and regulations are created to "pre-empt the field of federal common law nuisance", the courts have the power to consider the merits of public nuisance suits.

A new form of environmental litigation?

The only previous attempt in the US to use public nuisance to address climate change issues was People of the State of California v General Motors Corporation (2007) WL 2726871 WL 2726871 (N D Cal). That fell at the hurdle of justiciability, so this is a significant decision for US plaintiffs and defendants alike.

While the decision is not binding on Australian courts, it may well act as an encouragement to groups here to use public nuisance as a possible avenue to sue emitters.

To date, Australian cases have tended to address climate change through challenges to administrative decision-making processes, including the extent to which those processes require the decision-maker to consider the principles of ecologically sustainable development, such as Gray v Minister for Planning (2006) 152 LGERA 258.

Although they have been argued on a different legal basis, these cases do show that the Australia courts are willing to find causal relationship between the emission of greenhouse gases and global climate change. It is therefore possible that in the not too distant future Australia will see court proceedings based on a public nuisance claim.

In Australia there are two main requirements for the action of public nuisance: standing (ie. an interest that is affected) and damage to a public right. Attorneys-General would have standing to bring an action in public nuisance, (although they are unlikely to launch such a claim here). It is also possible that the emission of carbon dioxide which contributes to climate change could be the subject of a nuisance claim by particular classes of persons especially vulnerable to the effects of climate change (for example, farmers, wine growers, or insurers).

If a public nuisance claim were brought and was successful, would the court order specific reductions, as the US States are seeking? That's highly unlikely; defendants would almost certainly be ordered to pay damages only, as Australian courts are rarely inclined, unlike their American counterparts, to make orders that require their supervision to be enforced or orders which require limited supervision.

Recently, members of a Climate Change activist group known as Rising Tide have commenced civil enforcement action in NSW against Macquarie Generation in relation to its coal-fired power station at Bayswater. The applicants allege that the emission of carbon dioxide from the burning of coal constitutes the wilful or negligent disposal of a waste without lawful authority in a manner that harms or is likely to harm the environment in contravention of section 115 of the Protection of the Environment Operations Act 1997 (NSW). They are asking the court for an injunction to restrain Macquarie Generation from emitting carbon dioxide.

If the case proceeds, the court will effectively be required to determine whether there is a causal connection between the carbon dioxide emissions from the Bayswater Power Station and global warming. The court would also need to find that the original development consent and environmental licence to operate the coal-fired power station were not sufficient lawful authority to emit carbon dioxide from the power station. If the case is successful, it may also indicate the extent to which Australian courts are willing to consider making orders requiring a reduction or cessation of carbon emissions. This will be relevant to potential public nuisance-based claims, including the nature of relief that might be sought by the plaintiffs.

Conclusions

Emitters of carbon dioxide and other greenhouse gases should monitor developments in Connecticut v American Electric Power. It is possible the defendants will appeal to have the case struck out again before it is decided on its merits. The case may be a catalyst for Australian activists to also consider the use of public nuisance to address and highlight global warming. The court's consideration of appropriate orders in the Macquarie Generation case may give some indication of the possibility of success for future Australian public nuisance cases seeking reductions in carbon emissions.