Second Circuit Swings Open The Door For Global Warming Tort Litigation

Article by William F. Stewart and Danielle Willard*

On September 21, 2009, the U.S. Court of Appeals for the Second Circuit issued an opinion on climate change nuisance liability that was both surprising and highly consequential for the energy, industrial, auto, and insurance industries. The two judge panel (reduced from three when the Honorable Sonia Sotomayor was appointed to the Supreme Court), held in State of Connecticut v. AEP¹ that: (1) public nuisance claims against greenhouse gas ("GHG") emitters were not barred on political question grounds; and (2) private organizations, upon a showing of injury different (in scope or kind) from the public at large, had standing to pursue that litigation. As discussed below, this decision has the potential to spur a rash of "global warming" litigation against energy, auto, and industrial defendants.