A native village in Alaska sued various energy companies, alleging that greenhouse gas emissions cause climate change and made them relocate their village because of flooding. The trial court dismissed the case because it involves political questions that are not for courts to decide. It also said the plaintiffs did not have standing because they were unable to establish that their injuries are fairly traceable to the named defendants.
The issue was appealed to the Ninth Circuit. The NAM filed an amicus brief July 7, 2010, arguing that the case represents an unprecedented attempt by environmental lawyers to recast public nuisance as a "super tort", in an effort to bypass 4 time-honored elements of fundamental public nuisance law. Their theory is unfounded in federal or state law, and they cannot establish direct causation between the defendants' energy activities and the plaintiffs' injuries. In addition, to determine whether the elements of proving public nuisance were met, a court would have to address complex political questions and establish nationwide emissions standards.
Even the plaintiffs admitted the case was born out of their frustration with the legislative process. Allowing this kind of suit would give rise to endless claims of liability in highly speculative mass tort cases after every harsh weather event.
On September 21, 2012, the Ninth Circuit dismissed the case, finding that the plaintiffs' claims were displaced by federal law. Because EPA is regulating greenhouse gases, federal common law cannot be the basis for public nuisance claims in this area.
This is another in a series of cases involving public nuisance claims arising from greenhouse gas emissions, including the Comer, American Electric Power, and Tennessee Valley Authority cases, all of which the NAM has participated by filing amicus briefs. The AEP case largely rejected this kind of wasteful litigation, but left open the possibility of nuisance claims under state law.