Supreme Court Blocks Greenhouse Gas Nuisance Claim

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Schnader Environmental Alert, co-authored by Levi Jones and Jeanne Barnum: Last month the Supreme Court held in an 8-0 decision that plaintiffs cannot use common law nuisance claims to set limits on carbon dioxide emissions for industry. It left the task of regulating greenhouse gases to EPA, consistent with its earlier opinion in Massachusetts v. EPA. The Court did not resolve the issue of whether the plaintiffs had standing to sue--the justices were split 4-4 with Justice Sotomayor not participating. With nuisance claims no longer available in federal court, it looks like the new hot topic for the courts in this area will be claims based on the public trust doctrine, a theory that has been brought back to life after about a century of disuse and is now being applied in state courts nationwide in the climate change context.

http://www.schnader.com/pubs/xprPubDetail.aspx?xpST=PubDetail&pub=792

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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