Skip to content Skip to site navigation


Attractive Nuisance

Can federal courts help tackle global warming?

If Congress and the president fail to tackle global warming, can courts step in? Can federal judges allow people struggling with the losses of global warming to sue polluters directly? The idea may at first seem crazy. In a legal world obsessed with claims of judicial activism, the image of a judge taking on a global problem like climate change seems like the punch line to a bad joke at an Exxon board meeting. But it turns out there is a long and proud history of judges addressing pollution in the absence of environmental regulation. For much of the last …


The Good News for 2010

Climate success in 2009 should inspire the new year

Co-written by Doug Kendall, founder and president of the Constitutional Accountability Center. For good reason, many climate activists view 2009 as a disappointing year, filled with bad news coverage and missed opportunities. The Senate seems a long way from passing a clean energy jobs bill, and the long-anticipated U.N. summit in Copenhagen has come and gone, producing only an unambitious, non-binding agreement among world leaders. Moreover, late last year, the climate movement suffered a blow to its image following the "Climategate" hacking scandal and reports that, for the first time in years, a decreasing number of Americans believe in human-made …


Climate law update

A victory for Katrina victims; a defeat for Alaskan villagers

Cross-posted from Warming Law. A federal appeals court has reversed the dismissal of a lawsuit brought by victims of Hurricane Katrina seeking damages related to global warming, while a federal district court in California has dismissed a similar lawsuit brought by an Alaskan village allegedly disappearing beneath rising sea levels. These rulings come weeks after the Second Circuit threw tort-based climate litigation back into the limelight when it revived a similar "nuisance" lawsuit brought by states and environmental groups against several major electric utilities. On Friday, the U.S. Court of Appeals for the Fifth Circuit reversed and remanded a lawsuit …


Why the Second Circuit ‘nuisance’ case brings good news, and bad (part II)

Cross-posted from Warming Law. In an earlier post, we explored the background, context, and historical significance of the Second Circuit decision handed down late Monday in Connecticut v. AEP, in which the court ruled that a group of states and environmental groups could sue several major electric utilities for contributing to a “public nuisance” in the form of global warming. In this post, we’ll explore the various next steps and implications of this decision, and explain why it brings even a greater sense of urgency to Congress’s ongoing deliberations of climate legislation. There are two parallel arenas in which this …


Why the Second Circuit “nuisance” case brings good news, and bad (part 1)

Cross-posted from Warming Law. Coverage and analysis is slowly trickling in of the landmark ruling [pdf] handed down by the U.S. Court of Appeals for the Second Circuit late yesterday, in which a 2-judge panel held that a group of states and environmental groups could sue several electric utility companies for creating a “public nuisance” through their emissions of climate-warming greenhouse gases. This is a truly historic ruling that should be celebrated and utilized by environmentalists, but that also brings with it certain dangers. In this, the first of two posts we will be publishing discussing the implications of this …


If you can’t say something helpful, don’t say anything at all

Cross-posted from Warming Law. The Washington Post has been editorializing in favor of congressional action to address climate change for more than a decade, but an editorial Monday makes us wonder if they mean it. The piece, entitled “Regulating Carbon,” bears a menacing subtitle: The EPA is getting ready. Congress? Not so much. And that’s about to become a huge problem. Actually, not so much. The Post gets the first part of its editorial spot-on in stating that “[t]he most effective way for the United States to fight global warming is for Congress to put a price on carbon, either …


Kennedy thanks megacorporations for their pedagogy during elections

Supreme Court justices say the darnedest things

During the widely-watched Supreme Court re-argument Wednesday morning of Citizens United v. Federal Election Coalition – a case that challenges the constitutionality of over a century of campaign finance laws restricting corporate spending during elections – the Justices' varying opinions on corporations were on full display. While some, notably Ruth Bader Ginsburg and Stephen Breyer, expressed concern at the enormous influence of "mega-corporations" in politics, others seemed far more sympathetic to corporations' motives. During an exchange with Solicitor General Elena Kagan (arguing on behalf of the FEC) over whether corporations should be permitted to influence policymaking, Justice Anthony Kennedy said: …

Read more: Politics


Pre-empty promises

Supreme Court decisions bode well for global warming-related preemption cases

In the tricky legal world of "preemption" -- the principle that federal law "preempts," or trumps, state law -- two recent Supreme Court decisions bode well for ongoing, seemingly unrelated global warming litigation. The first of these decisions, Altria Group, Inc et al. v. Good et al., concerned a class-action lawsuit brought by smokers in Maine, who claimed the manufacturers of "light" cigarettes used deceptive practices by promoting their product as having fewer health risks than normal cigarettes. The cigarette makers, by contrast, argued that they were immune from state fraud claims if they have met federal cigarette labeling law. …

Read more: Climate & Energy