Below is the first in a series of guest blogs by Ken Alex, Senior Assistant Assistant Attorney General in charge of the Environment Section of the California Department of Justice, focusing on climate change litigation in the United States.

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Global warming has breathed new life into that venerable stalwart of environmental law, public nuisance.  Two recent federal appellate decisions hold that plaintiffs have judicially cognizable actions for harm caused by global warming.  It’s a very long distance from establishing a judicial forum to proving that a defendant significantly contributed to global warming and that global warming caused the plaintiff harm, but bringing the judicial branch into the discussion is no small feat, and the rulings might help promote federal legislation.

I represent California in one of those cases – Connecticut v. AEP – and I thought that it might be of interest to review how we got to this point, where we are, and where we might be heading.

Seven or eight years ago, an attorney in private practice named Matt Pawa quit his job, got a small grant from a foundation in Boston called The Civil Society Institute, and spent the next two years evaluating possible legal responses to the growing threat and impact of global warming.  Matt evaluated many possibilities before concluding that the federal common law, a concept largely left for dead, might provide a federal judicial forum for redress of global warming impacts.  Matt describes his efforts in detail in Rechtschaffen & Antolini, Creative Common Law Strategies for Protecting the Environment (Environmental Law Institute 2007).

In Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), the Supreme Court severely constrained the concept of federal common law, relegating it to areas of exclusive federal interest.  One such area, it turns out, concerns interstate pollution.  In a case called Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907), Justice Oliver Wendell Holmes eloquently described states’ interests in protecting state lands and resources from environmental degradation.  The States, when they joined the Union, gave up their rights to bear arms against each other.  In exchange, the States retained rights in federal court for resolution of disputes involving cross-border pollution.  In 1972, long after Erie, the Supreme Court in Illinois v. City of Milwaukee, 406 U.S. 91 (1972), determined that the federal common law continues to exist for interstate pollution.

Pawa, on behalf of the Natural Resources Defense Council, now joined by seven States and the City of New York, reasoned that greenhouse gas emissions from the five largest owners of coal-fired power plants, accounting for 10% or so of all U.S. carbon dioxide emissions, constituted interstate pollution, governed by federal common law and subject to an action alleging public nuisance.  Three other suits followed:  A group of private plaintiffs sued multiple entities alleging that their generate greenhouse gas emissions contributed to the harm caused by hurricane Katrina; California sued the six largest automakers for monetary damages caused by global warming; and the Village of Kivalina, an Alaskan native village literally falling into the ocean because of warmer temperatures, sued on a similar theory.
In each case, in four different district courts, the suits were dismissed on the grounds that they involved non-justiciable political questions appropriate for resolution by the political branches, not the courts.

In my next blog entry, I will discuss the appellate court rulings and their implications. Kex Alex