Warming Up the Courts


Last week eight state attorneys general and the City of New York sued five utilities over their contributions to global warming. Writing in TechCentralStation, Jonathan Adler explains how this differs from the tort-based approach to pollution control that many libertarian support:

Nuisance is a longstanding common law cause of action that can be brought against environmental polluters. In one of the earliest nuisance cases, a landowner brought suit against his neighbor who owned a pig farm. The noise and odors of the operation infringed upon the landowner's right to the peaceable enjoyment of his own property and was declared a nuisance by the court. Therefore the pig farmer was required to clean up his operations or move somewhere else. Since then, the law of private nuisance has proven quite effective at addressing many pollution concerns, particularly where one landowner engages in polluting activity that harms the property of his neighbor.

"Public" nuisance, by contrast, involves a polluting activity that interferes with the rights of the community at large. Whereas a private nuisance suit would be brought by an individual landowner, public nuisance suits are typically brought by government officials to vindicate the interests of the local community as a whole. Thus, state attorneys general can, and sometimes have, brought suits against industrial polluters alleging their emissions are harming communities downstream or downwind. Where causation is shown and the nuisance is proved, courts have ordered the polluting companies to pay damages, clean up, or simply shut down.

In this case, Adler notes, "downstream" and "downwind" aren't really relevant concepts. Furthermore, "The state AGs could have targeted facilities in their own states, bringing a series of state-law-based common law nuisance claims, but that would have meant imposing costs at home. The same would be true had the state AGs called for legislation to require significant emission cuts—something few states have done. Instead, they've opted to file suit against utilities in other parts of the country, demanding 'protection' from climate change, while showing no willingness to bear the attendant costs themselves."

In other words—as Adler puts it bluntly on the environmental blog The Commons—"the suit is more about political posturing and trying to force a negotiated settlement with utilities than it is about climate change."


NEXT: Buckets of Struggle

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  1. s.m. koppleman,

    I think you miss the point on the downwind issue. This case appears to be exclusively about carbon dioxide emissions. There is no “downwind” for co2. It all goes into the global co2 pool immediately. Even if the there was a “downwind”, at least two the states California and Wisconsin, cannot argue that they are “downwind” of even particulate emissions.

    By the reasoning of the plaintiffs in this case, I could sue you for exhaling carbon dioxide. The carbon dioxide you exhale contributes to global warming which will hurt me so you have to pay up. Then presumably you could turn around and sue me for my carbon dioxide exhalations.

    This suit is nothing but a stunt.

  2. Shannon Love,

    In the case of Vermont you’re wrong; about 75% of Vermont’s power comes from one nuclear power plant – Vermont Yankee – and the rest is derived basically from Hydro Quebec. As to California, as I understand it, most of the power they generate in their state comes from natural gas plants, which has far lower CO2 emissions than than the big “dirty” coal-fired plants that these lawsuits are probably focused at.

  3. Shannon Love,

    Those “dirty” plants also likely tend to be in states other than the ones filing suit – more specifically the mid-west & the south.

  4. Shannon Love,

    It should be noted that New England states have made a serious effort to get rid of their coal-fired plants; indeed, one of the reasons why about 95% of new generating facilities built in the last twenty years were natural-gas facilities was due to the concerted effort in New England to get rid of coal-fired plants.

  5. “Last week eight state attorneys general and the City of New York sued five utilities over their contributions to global warming. ”


    First they’ll have to prove that there IS such a thing as global warming at all in the first place – which NO ONE has done yet.

  6. Thought I’d post this link I found regarding CO2 emissions for power plants. I was gonna make a post, but it answered all the questions I had in it.

    Unfortunately, it looks like the only way to get a significant gain in the reduction of CO2 is to seriously cut back on coal-fired power plants. That looks like the goal of the lawsuit, to me, but it does beg the question “What do we use instead?” Even outside of political questions like putting lots of people out of business and jobs, where does the funding and the fuel come from to replace that generation capacity? Coal produced 80% of the CO2 in the US in 1999, while providing 51% of the electricity. We could stand to use the CO2, but how much generation can we lose? Are there better solutions, like planting trees (and then building things with the wood 😉 ), than shutting down electricity generation? I think the law of unintended consequences is just waiting for this with glee.

  7. I hope WI AG Lautenschlager has a plan for when all the other state AG’s sue us and our dairy industry. Bovine flatulence is a source of CO2.

    It amazes me that WI joined the suit, as one of the named companies has operations here. Well, maybe Peggy was drunk.



  8. Lautenschlager has no shame. Neither does Spitzer who is a political hack.


  9. This situation honestly calls for a Roark-like solution. What if ?Ohio Edison Shrugged?? I say if Elliot Spitzer wants to reduce greenhouse gasses, let?s do it. The Ohio Valley power producers make a lot of electricity, much of which powers substantial chunks of the Northeast. They should take their plants off line, sell the generating equipment to Iraq and move it out in the middle of the night, and let the grid crash. As the Northeast grid browns out then goes black, let Mr. Spitzer explain to the people why they can?t brew their coffee, and why the stoplights don?t work, and why reducing (the highly speculative) effects of greenhouse gasses was more important than keeping the heat on in their homes. Alternately, I suppose they could all just take their power off line at about 6:00 AM Eastern for a couple hours, if they didn?t mind the inevitable federal enforcement action to follow. It?s time to end this greenhouse gas horseshit, and the notion that we can have all the electric power we want, without burning fossil fuels or using nukes or building dams. The only think that is going to wake people up to this fact, is an ice cold cup of coffee at 6:00 AM in the morning, and Ohio Edison is in a position to do just that, literally.

  10. I don’t get it. How can California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont, and Wisconsin sue other states for carbon dioxide emissions when they themselves are massive emitters of C02?

    OTMH, seventy percent of U.S. electricity comes from carbon emitting sources. Unless the complaining states went on a nuclear power building binge when no one was looking, how can they point the finger at other states? Has each of the state implemented carbon caps themselves? If not, can’t the states being sued just sue them back?

    These suits reflect an cynical disregard for science, the law and the democratic process.

  11. That’s the nice thing about global warming. The damages occur over such a long period of time and both responsibility and damages are so thoroughly distributed among millions (nay, billions) of people that large polluters that can easily do better figure they have nothing to fear from negligence. Everyone gets to be a free rider.

    In 50 years if the entire Lower 48 is a desert and the new drought-and-monsoon weather patterns have caused measurable economic damage to individuals, can our grandchildren sue whichever of today’s polluters are still in business, or will the statute of limitations have run out and the burden so spread out that everybody’s blameless?

    One sort of refreshing thing about Adler’s argument is that he’s not denying global warming. Here he’s mainly saying that since, gosh, the emissions that contribute to it come from all over the world from zillions of sources, you can’t go around suing individual contributors to the problem without suing them all, and since so many of them are outside the US you can’t do that, ergo boo fucking hoo.

    I wouldn’t be as quick as you or Adler to toss out the “downwind” principle. If several rivers feeding into the Gulf of Mexico are heavily contaminated with pollution from glue factories and the fish all along the coast start dying off from glue-factory-related toxins, is it impossible to sue individual polluters up each river because the plaintiffs can’t establish which particular glue factory provided the molecules ingested by a given dead fish?

    I’m curious about what you think can or should be done if (if, mind you) we agree that airborne emissions are contributing significantly to atmospheric and climate change. If torts can’t work because of the jurisdictional and muddled source issues, what then? I’m not really curious about the nuances of Adler’s reasoning; he’s writing from the perspective of someone commissioned by what I assume are defendants in the case through his employer, PR firm the DCI Group who publish these advertorials under the “TechCentralStation” banner.

    Funny how that whole reliance-on-torts thing comes off the table the minute someone or some entity actually tries to sue a largish corporation, though, innit?

    On the government-as-plaintiff thing: Would you or Mr. Adler be more sympathetic to the plaintiffs’ side if it was a privately-owned water utility that was suing over the effects of an alleged global-warming-induced long-term drought? What makes a local government a problematic party to such a suit? It’s an entity that provides products and services, and it’s claiming that pollution-induced global warming is impacting its bottom line through low reservoirs, brush fires and so on.

  12. Highway,

    Well, at one point nearly 80% of generating capacity was from coal-fired plants; the goal of most is to replace those plants with natural gas-fired plants (the modern ones work differently from the coal plants because the former merely “boils water,” while the latter churns the natural gas through what is essentially a jet engine anchored to the ground). Natural Gas in this way is supposed to be a “transistional” fuel for the future “hydrogen economy.” Whether that’s a pipe I can’t say. I do know that almost all new power plants are natural gas-fired plants – in part because they burn much more cleanly (and not just for CO2) than the coal-fired plants do.

  13. If torts can’t work because of the jurisdictional and muddled source issues, what then?

    Maybe we deregulate the energy markets and let them find a solution. Perhaps we even take the shackles off the nuclear industry – hey, if its good enough for the French . . . .

    I know, that’s crazy talk – why whould anyone want to make themselves and their descendants multibillionaires by developing major new clean energy sources?

    I’m pretty sure saddling the energy markets with billions of dollars of unproductive lawsuit-induced debt isn’t going to contribute to solution, though. Sounds to me like a good way to drive investment, and thus innovation, away.

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