Supreme Court Will Decide Fate of Climate Change Nuisance Lawsuits

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The Decision

The Supreme Court will decide whether a lawsuit alleging that certain power companies’ greenhouse gas (GHG) emissions constitute a public nuisance can proceed in the courts. The power companies hope that the Court will reverse the Second Circuit Court of Appeals which allowed that lawsuit, Connecticut v. American Electric PowerCo. (AEP), to proceed.

The Importance of the Decision

If the Court finds for the power companies, the decision would likely halt most, if not all, climate change nuisance litigation. But if the Court sides with the plaintiffs, similar lawsuits will move forward. One of those lawsuits is Native Village of Kivalina v. ExxonMobil Corp.,1 in which the plaintiff seeks recovery of costs relating to rising sea levels. If the plaintiffs in these cases can overcome the challenges faced by the plaintiffs in the AEP litigation (standing, preemption, and justiciability), the costs to industry in the form of damages and costs of compliance with court orders enjoining GHG emissions deemed to constitute a nuisance could be enormous. The threat of spreading climate change litigation could prompt congressional action on some sort of federal climate change legislation despite the Republican mid-term election victories.

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