On Sept. 21, 2009 the U.S. Court of Appeals for the Second Circuit issued a decision in Connecticut v. American Elec. Power Co. Inc., 2009 WL 2996729 (2d Cir. Sept. 21, 2009). The decision was the first to allow a climate-change-as-public-nuisance claim to go forward. It also provided the first detailed analysis of the main arguments made in support of a dismissal on the pleadings. A petition for en banc rehearing was filed on Nov. 5, 2009.
Connecticut was followed quickly by two other long-awaited climate change rulings. In Comer v. Murphy Oil USA Inc., 2009 WL 3321493 (5th Cir. Oct. 16, 2009), the U.S. Court of Appeals for the Fifth Circuit became the second federal appellate court to reverse and allow plaintiffs’ claims to proceed, while, in Native Village of Kivalina v. ExxonMobile Corp., No. 08-CV-2095 (N.D. Cal. Sept. 30, 2009), the Northern District of California became the latest district court to dismiss plaintiffs’ complaint. A notice of appeal to the U.S. Court of Appeals for the Ninth Circuit in Kivalina was filed on Nov. 6, 2009; while a petition for en banc rehearing in Comer is due by Nov. 30, 2009.
