39 ELR 10218 ENVIRO NMENTAL LAW REPORT ER 3-2009
Getting Back to
Are of Limited
Value in Shifting
the Costs of
by Jim Gitzla
Jim Gitzla is Senior Counsel, Grippo &
Elden, LLC, Chicago, Illinois.
Climate change is a global problem to which everyone
contributes and from which everyone suers in unequal
proportions. erefore, common-law nuisance is not
a strong theory for plaintis to use to shift their costs
because any victim’s private interests will be widely
shared. Should the alleged injuries suered 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” suered
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
ese claims dier 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 (Cliord Rechtschaen
& 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 Eect! 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.
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 suered “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.