Posted by: bmeverett | April 23, 2011

When nuisance is nonsense

I’m not a lawyer, and I don’t play one on TV. It seems to me, however, that our legal system should use common sense principles. Although the details of law are complex and esoteric, lawsuits should at least pass a “straight face” test of reasonableness. Most Americans can cite examples of frivolous lawsuits, including burglars who sue their victims and the infamous case of the woman who burned herself with hot coffee from McDonalds while she was driving. It’s not surprising that clever lawyers and people with too much time on their hands can craft these lawsuits, but we should expect more from elected officials.

The Supreme Court is now hearing a case called, in shorthand, Connecticut versus American Electric Power. In reality, not only Connecticut, but New York (state and city), California, Iowa, New Jersey, Rhode Island, Vermont and Wisconsin are suing five electric utilities: American Electric Power, Southern Company, the government-owned Tennessee Valley Authority, Xcel Energy and Cinergy for causing global warming. The plaintiff’s argument is that the power companies are guilty of a “public nuisance” by putting carbon dioxide into the air.

As always, the Supreme Court is considering highly technical arguments about who has standing to sue and what kinds of cases the courts should decide. The plaintiff’s basic argument about “public nuisance”, however, ought to be straightforward. English common law has recognized the concept of nuisance for centuries. Every English citizen was entitled to the “quiet enjoyment” of his property. If his neighbors made lots of loud noise, collected noxious piles of garbage or kept a bunch of barking dogs, that citizen had redress to the courts through a civil action for a private nuisance. When the nuisance was so bad that lots of people were affected, the community could bring legislative, civil or criminal action for public nuisance.

Some modern environmental law is based on the principle of public nuisance. If a factory is dumping toxic waste into the river thereby contaminating the water supply, most people would support action to stop the pollution, and the courts would be receptive to a lawsuit. The plaintiffs in the Connecticut case argue that the same principle applies to power plant CO2 emissions causing global warming. To me, however, this argument seems badly flawed. The law should intervene when there is an actual nuisance, not a potential nuisance. Suppose, for example, that your neighbor sued you for barbecuing steaks in your back yard on the grounds that the smell might attract a pack of vicious wolves to the neighborhood. Such a claim would seem far-fetched, and reasonable jurors would probably reject it unless the plaintiff could show that wolves had appeared on the scene.

Catastrophic anthropogenic climate change remains a hypothesis, and supporting evidence is remarkably thin, despite the claims of environmentalists. No-one is arguing that global temperatures have already risen dramatically. The UN’s Intergovernmental Panel on Climate Change suggests that global temperatures have risen by less than 1º Celsius over the past hundred years. An increase of that magnitude is not even noticeable, let alone problematical. The “climate community” is in fact arguing that man-made greenhouse gas emissions will cause the temperature increase to accelerate over the next century with catastrophic results. I have explored the weaknesses in this argument in several previous posts. In summary, this claim rests on the belief that all elements on the climate system, and particularly cloud formation, will create powerful feedback loops. There is no evidence that this is true and some evidence that it is not true.

Whether or not the climate change hypothesis proves to be correct, there is for now no public nuisance, only a claim that there will be a nuisance in the future. Such a claim should require a very high standard of certainty. Can we sue our neighbors for buying their child a trumpet because he might someday make too much noise? Can we sue our neighbors because their outdoor lights might attract the attention of hostile aliens from space? It seems to me that you shouldn’t be able to sue for nuisance unless there is actually a nuisance.

What the plaintiffs are really doing is simply moral posturing. Attorneys General (also known as AGs or “Almost Governors”) are all too often ambitious politicians who see the AG position as a stepping stone to higher office. Richard Blumenthal, the Connecticut AG who originally brought the suit, is now a Senator. If the AG wants to appeal to the Climate Community for votes, they should give a campaign speech supporting legislative action to reduce carbon emissions. Litigation is a terrible alternative. In addition to costing taxpayer money at a time of huge state budget deficits, these suits run a small chance of actually succeeding. Do we really want the right to sue anyone who emits carbon dioxide? If so, you better be able to hold your breath for a very long time.



  1. I am a geologist & professional engineer. Global warming may or may not be taking place – who knows? As for 1 degree Celsius rise in temperature over the past century – again who knows?? Temperature records 100 years ago are highly questionable – how can we be sure such an average means anything – in fact, even 50 years ago I’d question the accuracy of an average. If the loons are so worried about CO2 emissions from power plants, why not questiion the emissions from ethanol – it pollutes to beat HELL. Plus it takes fossil fuel to produce it, which emits CO2. Also, starve the undeveloped countries – plant corn and sugar cane for FUEL not FOOD. I am amazed at the incredible ignorance of most environmentalist regarding what is really happening. They don’t realize that Mother Earth makes the big decisions on climate – not man. This does not mean that I believe we do not protect the environment – it means I beleive we must be realistic and approach the climate issues sensibly, keeping economics also in mind.

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