In a breakthrough for both environmental law and the global warming dialog, the 2nd Circuit ruled Sept. 23 that plaintiffs can bring public nuisance claims against power companies for global warming-related injury. Connecticut v. American Electric Power dates back to 2004, when plaintiffs including the attorneys general of eight states and New York City sued six electric power companies operating fossil-fuel power plants.

The historic ruling gave an expansive reading of standing, finding that states, municipalities and private non-profits can bring these actions against plants, and that until the EPA releases regulations governing stationary-source greenhouse gases, such federal actions are not pre-empted. The prospect of public nuisance litigation may add weight to the pressure to drive climate change litigation through Congress, says Seth Jaffe, coordinator of the Environmental Practice Group at Foley Hoag. Indeed it seems the tide may be turning. In September several prominent members of the U.S. Chamber of Commerce publicly criticized the group's stance against regulating greenhouse gases, and in October Apple resigned from the group, citing its views on global warming.

“My feeling is even those who really fear climate change legislation would rather have legislation than be subject to public nuisance litigation,” Jaffe says. “In the absence of legislation, this is going to be a big case–there's going to be a lot of climate change litigation.”

In a breakthrough for both environmental law and the global warming dialog, the 2nd Circuit ruled Sept. 23 that plaintiffs can bring public nuisance claims against power companies for global warming-related injury. Connecticut v. American Electric Power dates back to 2004, when plaintiffs including the attorneys general of eight states and New York City sued six electric power companies operating fossil-fuel power plants.

The historic ruling gave an expansive reading of standing, finding that states, municipalities and private non-profits can bring these actions against plants, and that until the EPA releases regulations governing stationary-source greenhouse gases, such federal actions are not pre-empted. The prospect of public nuisance litigation may add weight to the pressure to drive climate change litigation through Congress, says Seth Jaffe, coordinator of the Environmental Practice Group at Foley Hoag. Indeed it seems the tide may be turning. In September several prominent members of the U.S. Chamber of Commerce publicly criticized the group's stance against regulating greenhouse gases, and in October Apple resigned from the group, citing its views on global warming.

“My feeling is even those who really fear climate change legislation would rather have legislation than be subject to public nuisance litigation,” Jaffe says. “In the absence of legislation, this is going to be a big case–there's going to be a lot of climate change litigation.”