Getting Back to Basics: Why Nuisance Claims Are of Limited Value in Shifting the Costs of Climate Change

• Date: 01 March 2009

39 ELR 10218 ENVIRO NMENTAL LAW REPORT ER 3-2009

Getting Back to

Basics: Why

Nuisance Claims

Are of Limited

Value in Shifting

the Costs of

Climate Change

by Jim Gitzla

Jim Gitzla is Senior Counsel, Grippo &

Elden, LLC, Chicago, Illinois.

Editors’ Summary

Climate change is a global problem to which everyone

contributes and from which everyone suers in unequal

proportions. erefore, common-law nuisance is not

a strong theory for plaintis to use to shift their costs

because any victim’s private interests will be widely

shared. Should the alleged injuries suered by these dis-

parate people be subject to private damages suits, and how

much interference with strategic industries are we willing

to tolerate? Clearly there comes a point where so many

people are interested in the outcome that a political solu-

tion is preferred over a judicial one. Nuisance claims mis-

takenly take the analysis in precisely the wrong direction.

Over the past six years, many commentators have sug-

gested that damage recovery claims, characterizing

global climate change as a common-law nuisance,

may be the new cutting edge of environmental litigation.1

In 2005, ve states took up this charge when they sued ve

power companies for their contributions to global warming

under theories of federal and state common-law nuisance.2

Claiming these defendants were independently responsible

for a total of one-quarter of the emissions by the total U.S.

power sector, the states demanded injunctive relief limiting

future emissions.3 In September 20 06, the state of California

followed suit, suing six large automobile manufacturers and

alleging that “by their emissions of carbon dioxide [(CO2)]

and other greenhouse gases [(GHGs)] from the combustion of

fossil fuels in passenger vehicles and trucks, [they] have know-

ingly created or contributed to and are knowingly creating or

contributing to a public nuisance—global warming—inju-

rious to the State of Ca lifornia, its citizens and residents.”4

California demanded compensatory damages that could have

exceeded a billion dollars.5 In February 2008, the residents of

Kivalina, Alaska, sued 19 corporations under public and pri-

vate nuisance, alleging the defendants’ “greenhouse gas emis-

sions are a direct and proximate contributing cause of global

warming and of the injuries and threatened injuries” suered

by the Kivalina residents, including “the rights to use and

enjoy public and private property in Kivalina”6 necessitating

the island’s evacuation.7 ey asked for hundreds of millions

of dollars of compensatory damages, mainly to pay for t heir

community’s relocation.8

ese claims dier from typical nuisa nce suits in several

ways, mainly because of the extremely indirect relationship

1. See, e.g., David A. Grossman, Warming Up to a Not-So-Radical Idea: Tort-Based

Climate Change Litigation, 28 C. J. E. L. 1 (2003); Matthew F. Pawa,

Global Warming: e Ultimate Public Nuisance, in C C L

S  P  E 107 (Cliord Rechtschaen

& Denise Antolini eds., 2007); Randall S. Abate, Automobile Emissions and Cli-

mate Change Impacts: Employing Public Nuisance Doctrine as Part of a “Global

Warming Solution” in California, 40 C. L. R. 591 (2008); Seth W. Eaton,

Winter Is Frigid, So I Say Bring on the Greenhouse Eect! A Legal and Policy Discus-

sion of the Strategies the United States Must Employ to Combat Global Warming, 35

P. L. R. 787 (2008); Daniel V. Mumford, Curbing Carbon Dioxide Emis-

sions rough the Rebirth of Public Nuisance Laws—Environmental Legislation

by the Courts, 30 W.  M E. L.  P’ R. 195 (2005); Kirsten H.

Engel, Climate Change Litigation (Other an Under the Clean Air Act), ALI-

ABA C  S, Mar. 22-23, 2007.

2. Connecticut v. American Elec. Power Co., 406 F. Supp. 2d 265, 35 ELR 20186

(S.D.N.Y. 2005).

3. Id. at 268.

4. California v. General Motors Corp., No. CV06-05755, Compl. ¶ 58 (N.D. Cal.

Sept. 20, 2006) [hereinafter California Compl.].

5. e California complaint did not specify an exact demand, though it alluded to

the possibility that it would eventually have to spend “billions” of dollars deal-

ing with global warming, and that it had already suered “billions” of dollars in

damages. See id. ¶¶ 54, 63.

6. Native Village of Kivalina v. ExxonMobil Corp., No. CV08-1138, Compl.

¶250 (N.D. Cal. led Feb. 26, 2008) [hereinafter Kivalina Compl.].

7. Id., ¶¶ 185, 250, 264.

8. Id., ¶¶ 1, 186, 250, 260, 264, 266.