Global Warming: The Ultimate Public Nuisance
| Date | 01 March 2009 |
| Author |
39 ELR 10230 ENVIRO NMENTAL LAW REPORT ER 3-2009
Global Warming:
The Ultimate
Public Nuisance
by Matthew F. Pawa*
Matthew F. Pawa is president of the Law
Oces of Matthew F. Pawa, P.C.
Editors’ Summary:
In 2004, eight states led suit against ve major U.S.
electric power companies. Together, these companies
contribute 25% of the United States’ total carbon dioxide
emissions. e states’ complaint, based on the common
law of public nuisance, alleged that global warming poses
threats of severe harm to human health from increased
heat and air pollution. With the case now on appeal in
the U.S. Court of Appeals for the Second Circuit, the
legal community waits for insight into the eective-
ness of u sing common law public nuisanc e to combat
global warming.
On July 21, 2004, the attorneys general of Connecticut,
New Jersey, New York, and Vermont and the corpo-
ration counsel of the city of New York walked into a
crowded conference room in New York City. ey squeezed
through the crowd of staers and reporters and proceeded to
the podium, where large graphs depicting a perilous climb in
greenhouse gas (GHG) levels and a g lobal rise in temperature
perched on easels alongside satell ite photos of the shrinking arc-
tic ice cap.
New York Attorney General Eliot Spitzer announced that
the four states represented in the room and New York City,
along with four additional states —California, Iowa, R hode
Island, and Wisconsin—had led suit that morning in fed-
eral court in Manhattan against ve major U.S. electric power
companies under the common law of public nuisance. e
suit, Connecticut v. American Electric Power Co.,1 seeks to cur-
tail the companies’ massive emissions of GHGs that are con-
tributing to global warming. A companion case, Open Space
Institute v. American Electric Power Co.,2 was contemporane-
ously led in the same district court by three land trusts whose
properties in the northeastern United States are threatened by
the rising seas and ecological destruction from global wa rm-
ing. As Spitzer spoke, California Attorney General William
Lockyer announced California’s par ticipation in the states’
lawsuit at a press conference in Los Angeles. Later in the d ay,
Iowa Attorney General Tom Miller a nd Wisconsin Attorney
General Peg Lautenschlager explained at an event in Mil-
waukee why their states had also joined the case. Connecti-
cut At torney General Richard Blumenthal, who had shown
a keen ea rly interest in the case and was an importa nt gure
in its formation, succinctly captured the essence of the poten-
tial impact of this coordinated strategy of injunctive lawsuits:
“ink Tobacco without the money.”
e g lobal wa rming lawsuits launched that day were the
culmination of years of factual and legal research, countless
meetings and planning sessions, a nd a remarkable coopera-
tive eort among attorneys bound together by a common con-
viction. ey believed that polluters who are contributing to
the dangerous alteration of the planet’s climate a nd thereby
threatening severe a nd unprecedented harm to public hea lth,
property, and the environment of millions of Americans must
be answerable in a court of law. My involvement in these
cases dates to the beginning. In 1999, while working at a class
action law rm, I started independently pursuing the idea of
global warming litigation in cooperation with attorneys from
1. No. 04 CV 05669, 2005 U.S. Di st. LEXIS 19964, 35 ELR 20186 (S.D.N.Y.
Sept. 15, 2005), o n appeal, No. 05-5104- cv (2d Cir. 2 006). In addition to
Spitzer, the attorneys general at the press conf erence were Richard Blumenthal
(Connecticut), Peter Ha rvey ( New Jersey), and William Sorrell (Vermont).
e New York City corporation coun sel was Michael Cardoz o.
2. No. 04 CV 05670, 2005 U.S. Dist. LEXIS 19964 (S.D.N.Y. Sept. 15, 2005),
on appeal, No. 05-5119-cv (2d Cir. 2006). For ease of reference, the Connecticut
and Open Space Institute cases will be collectively referenced herein as Connecti-
cut v. American Electric Power.
Editors’ Note: e Article appears in the book Creative Common Law Strategies for
Protecting the Environment, edited by Cliord Rechtschaen & Denise Antolini, pub-
lished in 2007 by the Environmental Law Institute.
* e author wishes to thank the numerous assistant attorneys general who partici-
pated in the drafting of the legal briefs in the case discussed in this chapter, in particu-
lar William Brieger of California and Jared Snyder of New York. e views expressed
herein are solely those of the author.
3-2009 NEWS & A NALYSI S 39 ELR 10231
the Natural Resources Defense Council, Inc. (NRDC). at
creative partnership expanded in 2001 when I opened my solo
practice in Newtown Centre, Massachusetts. In early 2002,
Connecticut Attorney General Blumenthal contacted me to
initiate what turned out to be the very fruitfu l discussions that
led to the ling of these landmark companion cases in 2005.
is chapter tells the story of how these global warming
lawsuits, still in their early stages, began. Although the cases
were both dismissed in September 2005 in a cursory ruling by
the district court, that ruling is on appeal and will be reviewed
de novo by the U.S. Court of Appeals for the Second Circuit.
I. The Science of Global Warming
A. Consensus Within the Scientic Community
e need to address global warming through a tort lawsuit was
supported by a clear scientic consensus that global warming
is being caused by huma n emissions of GHGs, primarily car-
bon dioxide (CO2).3 GHGs trap atmospheric heat by absorb-
ing and re-radiating energy that otherwise would escape into
space back toward the earth’s surface. A certain level of some
naturally occurring GHGs, including CO2, is necessary to
keep the earth warm enough to support life. But the burning
of fossil fuels (oil, coal, and natura l gas) gives o CO2 during
combustion as the carbon in these fuels combines with oxy-
gen in the air. And burning very large quantities of fossil fuels
gives o very large quantities of CO2.
e theory of anthropogenic global warming, or the
“enhanced greenhouse eect,” was rst advanced in 1896 by
Swedish scientist Svante Arrhenius, who hypothesized that the
burning of fossil fuels on a large scale would cause CO2 to
accumulate in the earth’s atmosphere and that the elevated
level of CO2 would trap enough atmospheric heat to increase
the surface temperature of the earth.4 More than 100 years
later, it has turned out that Arrhenius was right.
1. Intergovernmental Panel on Climate Change
In one of the largest and most ambitious scientic collabora-
tions in history, in 1988 the World Meterological Organiz ation
and the United Nations Environment Programme formed the
3. See I P C C (IPCC), T A-
, C C 2001: S R, S P-
(2001), available at http://www.ipcc.ch/pub/un/syreng/ spm.pdf [hereinaf-
ter IPCC, T A R]; S R. W, T D
G W (Harvard Univ. Press 2003), available at http://www.aip.org/
history/climate/; J H, G W: T C B-
(3d ed., Cambridge Univ. Press 2004).
4. See National Aeronautical & Space Administration (NASA), Earth Observatory,
On the Shoulders of Giants, Svante Arrhenius (1859-1927), http://earthobservatory.
2005).
Intergovernmental Panel on Climate Change (IPCC), open
to membership by the countries belonging to the two orga ni-
zations.5 e IPCC gathers, assesses, and summa rizes thou-
sands of studies on all scientic and technical aspects of global
warming. Hundreds of scientists from around the world who
are leaders in a diverse array of disciplines are engaged in t his
assessment process. Every few years, t he IPCC publishes the
results of this comprehensive assessment of the state of the
scientic k nowledge of global warming. Many of A merica’s
leading climate scientists play important roles in drafting
the periodic IPCC assessments. e IPCC is vita l because of
the interdisciplinary nature of the global warming problem.
Without the IPCC, no one would be collating a nd compar-
ing all of t he relevant warming trends around the world such
as, for example, changes in buttery habitat in California and
shrinking arctic sea ice around the North Pole.
By 1990, when the IPCC issued its rst assessment report,
Arrhenius’ thesis had been widely acknowledged as correct:
CO2 was building up in the eart h’s atmosphere from the com-
bustion of fossil fuels. e 1990 IPCC report brought the
rapid increase in CO2 levels to the public’s attention, projected
a signicant increase in global temperature during t he 21st
century, and predicted serious risks and harms from the rise in
temperature.6 Although the IPCC could not yet attribute 20th
century warming to human emissions, the future trends in
GHG concentrations and global climate were clear. Reacting
swiftly, in 1992, most nations of the world reached agreement
on the United Nations Framework Convention on Climate
Change (UNFCCC).7 e UNFCCC seek s “stabilization of
greenhouse gas concentrations in the atmosphere at a level
that would prevent dangerous anthropogenic interference
with the climate system”8 and requires developed nations to
report periodically on their eorts to reduce emissions, indi-
vidually or jointly, to a nonbinding ta rget of 1990 levels.9 e
treaty recognizes and codies the requirement that the devel-
oped nations of the world make the rst round of emissions
reductions because it is largely their emissions that created the
problem. In June 1992, President George H.W. Bush signed
the treaty, which then sailed through the U.S. Senate on a
unanimous vote in October 1992, ma king the United States
the rst industrialized nation to ratif y the UNFCCC.
In 1995, the IPCC issued its Second Assessment Report,
in which it concluded that “the balance of evidence suggests a
discernable human inuence on global climate change.”10 is
conclusion constituted a major step forward in communicat-
5. For more information on the IPCC, see http://www.ipcc.ch.
6. IPCC, F A R, S A C
C R W G I, S P (1990).
7. UNFCCC, June 4, 1992, 31 I.L.M. 849, available at http://unfccc.int/2860.
php.
8. Id. art. 2, at 9.
9. Id. art. 4, ¶ 2(b).
10. IPCC, S A R, C C R W
G I, S P, T S C C
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