Climate Change Litigation – Recent Developments

In the absence of mandatory federal limits on greenhouse gas emissions, states and advocacy groups have turned their attention to the courts to achieve their goals. Three recent decisions provide an indication of what is to come. These cases address issues of standing, political question doctrine and the viability of common law causes of action, and judicial review of agency action. The three courts have taken different approaches, creating uncertainty for potential litigants. It seems inevitable that more suits will follow.

The most recent decision in this climate change trilogy involved a pair of cases brought by eight states, the City of New York, and three advocacy groups against five electric power producers under the federal and state common law of nuisance. Connecticut v.American Electric Power Co., 2005 WL 2249748 (S.D.N.Y. 2005). The plaintiffs charged that defendants, the "five largest emitters of carbon dioxide" in the U.S., were