Supreme Court to Decide: Is Global Warming a "Public Nuisance"?

By Andrew Moseman | December 7, 2010 1:16 pm

SupremeCourt2010Yesterday, the Supreme Court agreed to hear what could be the most important environmental case it will decide this year: Huge power companies like Xcel Energy and Duke Energy are appealing a ruling by an appeals court that they can be sued under public nuisance law. If that ruling is confirmed at the highest level, it could open the door to a flood of lawsuits claiming the power companies’ greenhouse gas emissions constitute a nuisance to the general public.

This one has been a long time coming. The case, brought by eight states including New York and California plus some environmental groups, dates back to 2004. First a federal judge threw out the states’ claim, essentially saying that emissions should be dealt with in legislative bodies, not courtrooms. Then the appeals court reversed that ruling, recognizing the eight states’ claim that these emissions contribute to global warming and could be considered under public nuisance law, prompting the power companies to balk and appeal.

In their appeal, the companies argue that the states lacked the legal right, or standing, to sue because they can’t show that they were harmed by anything the utilities did or that they would benefit from a ruling against the power companies. “A court is not a regulator and may not enter relief against a particular defendant where the plaintiff’s injury is not traceable to that defendant and where relief against the defendant would not redress that injury,” the companies argued. [Bloomberg]

Public nuisance laws, the energy companies argue, are far too vague to apply to greenhouse emissions.

“The ramifications of this [appeals court] holding, if it is allowed to stand, are staggering,” wrote Peter Keisler in a brief on behalf of the six power companies. “This litigation seeks to transfer to the judiciary standardless authority for some of the most important and sensitive economic, energy, and social policy issues presently before the country.” The lawyer added: “Virtually every entity and industry in the world is responsible for some emissions of carbon dioxide and is thus a potential defendant in climate change nuisance actions under the theory of this case.” [Christian Science Monitor]

Indeed, public nuisance is a weird legal avenue through which to target greenhouse gas emitters. But with Congress unable or unwilling to act on climate, states and environmental groups are looking to laws already on the books to make their case. Three years ago the hot strategy was suing the EPA: The 2007 Supreme Court decision in Massachusetts v. EPA said that the Clean Air Act gave EPA the authority (and the obligation) to regulate greenhouse gases from the transportation sector.

Now, the avenue for the Supreme Court to consider is public nuisance.

According to one of the environmental groups that brought the case, Open Space Institute, the appeals court’s ruling set a “major precedent in that it gives citizens — in the absence of climate change legislation — the right to take action against big business pollution.” [AFP]

Related Content:
DISCOVER: It’s Getting Hot in Here: The Big Battle Over Climate Science, interviews with Judith Curry & Michael Mann
80beats: Do the Election Results Halt All Action on Climate Change?
80beats: Senators Cut Climate Change Rules and Renewables From Energy Bill
80beats: Will the Supreme Court Let California Kids Buy Violent Video Games?

Image: Wikimedia Commons

  • John Dodds

    Are the Supremes qualified to decide a scientific issue?
    It is obvious that in the Greenhouse Effect you only get more warming when you add more energy photons to greenhouse gases. The key being that there are more or excess greenhouse gases already on Earth in the air and water than the number of energy photons available at any time.
    Simply adding a GHG like CO2 will not add warming , it will become excess, UNLESS you add a new photon. It is therefore adding the photon that causes global warming, not adding the GHG. This limited amount of photons is why the GHE will not continue past about 33C as a runaway GHE to vaporize all the available excess water in the ocean
    The simple proof is seen every day. When the sun rises it adds photons which combine with some of the excess GHGs to cause GHE warming. Then as Man adds CO2 all day, and the extra warmth adds more water vapor, when the sun goes down at night, the warming goes down, instead of up as Arrhenius & IPCC predict, because the number of photons goes down. The number of excess GHGs goes up. The IPCC and Arrhenius mantra that “more GHGs means more warming” is proven wrong every day. The Arrhenius scientific conclusion is incorrect.
    On this basis alone the States lose because the Electric companies do not control the number of photons coming into the Earth, & hence do not cause warming. The states can sue mother nature if they can find her.

    To read more about how Mother Nature adds & subtracts more photons over time to cause cyclical warming and cooling see the paper “Gravity causes Climate Change” at

  • JJ

    Does this mean we should all sue each other for exhaling…? These ridiculous law suits are a public nuisance…

  • John Robinson

    Taking this to it’s conclusion any company that markets any product or any government or government agency that uses anything that adds C02 to the atmosphere on a large scale can be sued including NGO’s.

  • Todd Gilmore

    John Dodds….you’ve got it all wrong. Adding more GHG increases the amount of incident solar radiation that is “trapped” …. the mean solar flux can be fixed, and with increasing amounts of GHG, there is more trapping. By “trapped,” we mean absorbed by carbon dioxide molecules and re-radiated by them at longer infrared wavelenths. It’s not like photons bouncing around in a container. The incident radiation spectrum is preferentially absorbed by many atmospheric gases, carbon dioxide being just one of them. These molecules of these gases exist in a number of vibrational and rotational energy states, which can be populated by external radiation (sunlight), and then when they “relax” to their original state, they radiate some of the energy back toward earth…which is where the “greenhouse” name came from.

  • s

    Todd… have it wrong. The “trapped” energy as you say is converted into kinetic energy and ultimately sent back out into space.

    Try and remember….E = MC2….the earth cannot change the amount of energy without changing its mass, or displacing another form of energy of an equal amount (which ultimately ends up as kinetic energy when the water evaporates and drags the “heat” back out). If CO2 “traps heat” because it is opaque in those wavelengths, then it has to reflect an equal amount comming from the Sun.


    it was 0 celcius in the Bahamas this morning.

    just sayin

  • MT-LA

    @ s: “…which ultimately ends up as kinetic energy when the water evaporates and drags the “heat” back out.” So by your (flawed) logic, since the earth is not getting more massive, then the energy being absorbed by the sun must be being dissipated because Earth is loosing water. By that argument, the earth would have never gained water in the first place since a) there was no water on a primordial earth with no atmosphere and b) the sun was always shining on earth.

    But then you go and say “it was 0 celcius in the Bahamas this morning”, which has the (faulty) implication that the earth is actually cooling, as if it bolsters your point. If the earth was cooling, then your (internally flawed) logic would imply that the earth is either a) loosing more water than its supposed to, or b) the sun is shining less. Which one is it?

    Are you purposefully trolling, or do you actually believe what you just posted? just sayin

    Getting back to the point of this article, I think that the court’s decision will get over-turned, but I do think it’s a positive step in the fight. Litigation is no way to deal with climate change – you can’t sue the climate. But it will force the courts and politicians to deal with the subject instead of deny its existence.

  • katana

    actually, bring on the lawsuits.

    let it try to be proven in a court that we are really in some climate crisis. lets let the evidence be laid out for all to see and be scrutinized, for and against.

    lets get this topic truly discussed.

  • John Dodds

    Todd Gillmore, NO its you and the climate scientists who have it ass backwards.
    The sun puts out about 1366 watts per sq meter at the average earth surface. This number has barely changed in 50 years according to This solar insolation gets absorbed by the ground/ocean, & warms it up It then radiates IR radiation to the air where everything that can be absorbed is absorbed in the Greenhouse Effect. The proof it that the GHE STOPS increasing at that point with about a 33C temperature increase. There is left over excessGHGs in the air and ocean. (just look at the water there!) A WV molecule that absorbs a photon is at about 900C- ie it vaporizes. The hot GHG vibrates and transfers its heat to the neighboring air molecules. This is the source of the GHE warming. When you add more CO2 or water vapor, you do NOT create energy. SO all you can do is keep absorbing all of the same amount that is coming in, even if you add more CO2. UNLESS you add more incoming energy (every morning)you can NOT add any neumber of GHGs. That is unless you can create energy & even though man can NOT, apparently climate scientists can. When the sun goes down and the number of photons decreases, then the temperature goes down and the GHE goes down, and the GHGs that used to be involved in the Greenhouse effect are no longer absorbing photons because there are no photons to absorb & so the GHE decreases, and the number of unused GHGs increases and so there is more excess GHG molecules (every night.) In spite of the number of GHGs increasing because man added more CO2 or because the decreasing energy in releasing more GHGs.

    This is simple common sense. OR are you going to claim you can create energy photons. If so then you have created a perpetual motion energy creator. You should patent it & sell it. Free energy!!

  • s

    MT – i just love it when people argue against basic physics.


    you can find it in any grade 10 physics textbook – usually under the heading “why can’t batteries charge forever”.

    but thanks for giving my class something to read.

  • Darius2025

    @ s… how out dated are high school physics textbooks? Just currious. Was it written in 1978?

  • MT-LA

    Very well, s. You’re not trolling, and you believe what you say, so I’ll engage you. But you’ll have to give me a cogent argument – these moving goalposts are getting hard to hit…

    As I read it:
    Your first argument invokes relativity (relativity, mind you) to prove that the earth isn’t warming. The earth isn’t getting more massive, so all the energy being absorbed by the sun is being dissipated by water evaporating into space. Never mind that the earth actually still has water, even though the earth has been absorbing sunlight the whole time.

    Your second argument(?) was that since the Bahamas were at 0 deg C on wednesday morning, then the earth must not be warming since a very local weather situation was actually cold. (BTW, just checked…the low for Wednesday in the Bahamas was actually 13 deg C…break out the ice picks!)

    Your third argument has something to do with a charging battery. A battery has a certain amount of charge capacitance, and once that capacitance is reached, you can’t put any more in. In my experience, when you charge a battery, it gets hotter. And it gets REALLY hot when you try to force more in. Or did I miss the physics lesson where hot actually means cold? By the way…since a battery isn’t losing any water while you charge it, does that mean it gets more massive because of relativity?

    I’d be more than happy to engage you in any one of your arguments, if you care to actually make an argument instead of lobbing illogic grenades. Tell your literature class to do their science homework; they’re better off doing that than reading petty online comment debates between people with too much time on their hands.

  • Clothcap

    Is Al (biofuels are bad) testifying for the realists?

    Curious, if there is more IR available in CO2’s range at the TOA, presumably due to reducing upper atm. humidity, (CO2 increases humidity?) and CO2 isn’t absorbing it all, that means CO2 can’t stop any more IR in its range escaping to space, i.e. CO2 is “full” at 365 ppm and can contribute to detained energy no further, why is Canjun happening? Why is the court case happening?

    IR in CO2’s range is now contributing to cooling.
    The full spectrum of IR at the TOA is showing increasing levels of emission to space as a trend.
    Albedo has not significantly reduced.
    TSI has not significantly increased from its 2000 low (SORCE).
    CO2 levels continue to rise.
    ENSO appears to have entered a La Nina regime (predominantly cool E. Pacific surface layer water).
    Absent significant warming since 1995.
    Absent warming since 2002.

    This year has been freakish. Perhaps the warming was Trenberth’s legendary stored heat that was to come back and bite us. Personally I find it hard to believe the 2010 warming uptick was anything other than an artifact due to estimated data for the Arctic, Antarctic, Sahara and other areas. There was over 20″ of gorebull warming in parts of the UK whose winters are getting steadily more severe.

    But then I’m just a dish washer.

  • JPeden

    The sad fact is that Global Warming, regardless of cause, has not even been shown to be a net disease complex – simply because ipcc Climate Science is nothing more than a massive Propaganda Operation, which, therefore, must avoid the scientific method as though it is holy water to a Vampire, and it has. Its reward have nothing to do with real science.

    But for a mere 1/10th the dollars spent by the U.S. Gov’t. on “Global Warming”/”Climate Change” research so far – giving me about $8 billion – I will assemble a bunch of “scientists” who will prove, by the very same method the ipcc scientists used, that GW will produce the closest thing to Heaven on Earth possible.

    On a “disease – cure” evaluation schema, the striking fact is that neither the ipcc Climate Science nor the EPA has shown that the ipcc’s alleged cure to it alleged disease is not much worse than its alleged disease; as it indeed immediately appears to be!

  • Crow

    Climate change – It’s worth discussing


Discover's Newsletter

Sign up to get the latest science news delivered weekly right to your inbox!


80beats is DISCOVER's news aggregator, weaving together the choicest tidbits from the best articles covering the day's most compelling topics.

See More

Collapse bottom bar