Can States Sue on Greenhouse Gas as a ‘Nuisance’? High Court Asks

As the U.S. Environmental Protection Agency (EPA) is busy girding itself for a fight over new greenhouse gas emissions rules, the U.S. Supreme Court heard arguments today in a case on whether lawsuits over climate ought to be permitted.

At stake is whether greenhouse gas pollution may be considered a “nuisance” under U.S. law. The case stems from two 2004 federal lawsuits brought by seven states and several land-trust groups alleging that emissions from five major power companies could cause harm by contributing to global warming. Rising sea levels, loss of water in the Great Lakes, and reduced hydropower were among the injuries alleged by the plaintiffs; the lawsuits have since been combined, and two states have dropped out since the original suit was filed. The district court subsequently said in its decision that the case brought up a “political” question that the other branches of government, not the judicial branch, should consider, but an appeals court reversed that ruling. When the power companies appealed, the Supreme Court took the case.

In other pollution cases, the Supreme Court has supported suits claiming that pollution caused harm as a “nuisance” under common law, most often interpreted to prohibit noise and light pollution. The 80 minutes of occasionally spirited argument at the high court this morning focused on the two main issues in the greenhouse gas litigation: For the case to go forward, the plaintiffs must prove that the case has legal standing (they must show that the court is the right venue for resolving this dispute), and that the common law definition of nuisance can support suits over greenhouse gases. On the issue of standing, the court could rule that Congress or EPA is a more appropriate body to deal with pollution control.

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