In a case last year, the United States Supreme Court held that plaintiffs cannot maintain nuisance claims against carbon-dioxide emitters based on federal common law, curtailing claims that may be brought against power companies and other emitters of greenhouse gases. The Court, however, did not decide whether plaintiffs can maintain nuisance actions against carbon-dioxide emitters based on state law, leaving that question open for consideration.
In American Electric Power v. Connecticut, 131 S.Ct. 2527 (2011), eight states, New York City, and three private land trusts sued four private power companies and TVA. The plaintiffs alleged that the defendants were the “five largest emitters of carbon dioxide in the United States.” Because the defendants allegedly contributed to global warming, the plaintiffs asserted that their carbon-dioxide emissions constituted a “nuisance” under federal common law. As such, the plaintiffs sought a decree setting carbon-dioxide emissions for each defendant at an initial cap, to be further reduced annually.
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