Global Warming Litigation and the Ghost of Mrs. Palsgraf: Why Carbon-Heavy Entities Should Be Scared of Both

摘要

Any private entity with significant greenhouse gas (GHG) emissions could be identified in the next climate change lawsuit. Filed in 2004 by a coalition of states and land trusts, Connecticut v. American Electric Power was the first major climate change lawsuit identifying private entities as defendants. On September 21, 2009, the U.S. Court of Appeals for the Second Circuit in Connecticut permitted plaintiffs to seek an order capping the carbon dioxide (CO_2) emissions of five electric utilities by certain percentages for at least 10 years. Less than a month later, the U.S. Court of Appeals for the Fifth Circuit in Comer v. Murphy OiP held that a group of private-property owners could proceed with global warming claims against energy, fossil fuel, and chemical industries for causing Hurricane Katrina. The political question doctrine, which rescued the GHG-emitting defendants in the lower district courts, was rejected by both circuit courts, and may be dead. As a result, the ghost of Helen Palsgraf may have found some new defendants to haunt.