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Seattle Light Rail: Public Nuisance or Cure to Climate Change? Brought to you by www.ecolawgroup.com

August 17, 2010

If you take a tour through Seattle, you are bound to encounter colorful signs posted in neighborhoods opposing development of the Seattle light rail.  Opponents suggest that the light rail would lead to a degradation of neighborhood quality.  They may be right.  A public nuisance is defined generally as an unreasonable interference in another’s right to use and enjoy property.  A public nuisance (one affecting a large group of residents) creates liability for the City of Seattle. 

For the past 10 years, Attorney General Rob McKenna has as evolved into an active opponent of the light rail. 

However, the Light Rail promises to bring Seattle up to speed with the rest of the nation in terms of mass transportation, reduce green house gases, dependence on oil, and create tax credits.  (Currently, many of these tax credits are being funneled into renewable energy sources such as solar and wind power). 

Reduction of green house gases (GHG’s) may even be a state imperative. 

Eco Law Group has brought us up to speed.  In a more novel approach to the climate change issue, various groups have commenced lawsuits seeking to use the common law of public nuisance to compel companies to reduce their GHG emissions. After several initial failures, plaintiffs convinced two different federal courts of appeal to allow their GHG-based public nuisance claims to proceed in the face of arguments that the cases raised nonjusticiable political questions and must therefore be dismissed. In State of Connecticut v. American Electric Power Co., 582 F.3d 309 (2d Cir. 2009), the plaintiffs—a group consisting of several states and the City of New York—alleged that GHG emissions from power plants owned by the defendant companies pose a threat to the general public and therefore constitute a public nuisance. The suit sought to hold the defendants jointly and severally liable for contributing to a public nuisance and requested an injunction requiring each of the defendants to abate the nuisance by instituting a declining emission cap. The district court granted defendants’ motion to dismiss the case, concluding that the complaint raised nonjusticiable political questions that were beyond the limits of the court’s jurisdiction. The Court of Appeals for the Second Circuit reversed and remanded the case back to the district court after finding that the facts did not differ significantly from other complex public nuisance cases decided in the past and that judicial resolution would not contradict prior decisions made by the other branches of government.

A few months later, the more conservative Court of Appeals for the Fifth Circuit reached a similar conclusion in Comer v. Murphy Oil USA, 585 F.3d 855 (2009), reh’g en banc granted, 598 F.3d 208 (5th Cir. 2010). The plaintiffs in that case filed a class action against a group of energy, fossil fuel, and chemical companies alleging that GHG emissions from their facilities contributed to global warming which, in turn, caused a rise in sea levels that contributed to the damage to their property caused by Hurricane Katrina. As an initial matter, the court concluded that plaintiffs’ claims easily satisfied Mississippi’s liberal standing requirements. The court went on to find that the public nuisance, trespass and negligence claims raised by plaintiffs did not present any specific question that was exclusively committed by law to the legislative or executive branch. According to the court,

There is no federal constitutional or statutory provision making such a commitment, and the defendants do not point to any provision that has that effect. The most that the defendants legitimately could argue is that in the future Congress may enact laws, or federal agencies may adopt regulations, so as to comprehensively govern greenhouse gas emissions and that such laws or regulations might preempt certain aspects of state common law tort claims.

Id. at 870. In so holding, the court effectively authorized climate change-related nuisance and trespass claims against major GHG emitters by private property owners seeking damages. Assuming the decision is not reversed, the success of the plaintiffs’ case will likely depend on whether they can establish a sufficient causal link between defendants’ actions (emitting greenhouse gases) and plaintiffs’ harm (property damage from Hurricane Katrina).

A California district court faced with similar allegations that defendants’ GHG emissions gave rise to a cause of action for public nuisance reached a different result in a pair of recent cases. In the first case, the State of California sued several leading automakers in federal court, alleging that carbon dioxide emissions from vehicles manufactured by the defendants created a public nuisance in violation of federal common law and the California Civil Code relating to public nuisance. The court in California v. General Motors Corp., 2007 WL 2726871 (N.D. Cal. 2007) dismissed the case after concluding that it raised a nonjusticiable political question.

 Although the light rail does not promise to ultimately change the current hot weather we are having, it does have a positive effect on reduction of GHGs and correlative effect on neighborhood conditions.

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