Civil LitigationNuisance – from Property to Environmental Litigation

May 8, 20210

Today, our blog will talk about various nuisance claims, and give a recent example of one using Rhode Island’s environmental litigation against fossil fuel companies for the consequences of climate change.

What Is a Nuisance (legally speaking) in Rhode Island?

Under common law, there are two kinds of nuisance claims, though both were mostly related to property law historically. The first, private nuisance, “arises from the unreasonable use of one’s property that materially interferes with a neighbor’s physical comfort or the neighbor’s use of his real estate.” This claim is generally only raised by one private party against his/her neighbor.

The second, public nuisance, is a lawsuit over the “unreasonable interference with a right common to the general public.” Eventually, environmental litigation started including public nuisance claims for instances where one or more corporations were responsible for environmental damage or harms as a result of their business practices. The case below, for example, argues that “protection, preservation, and enhancement of the state’s natural resources” are rights common to the general public. The state argued, in the case below, that fossil fuel companies’ practices and failure to disclose the climate change harms associated with those practices are an unreasonable interference with “the property, health, peace, comfort, safety, and welfare of the general public and the natural resources of State of Rhode Island…”

Nuisance claims are common law claims (developed by previous case law). But in R.I., they may also be statutory. Under the RIGL § 10-1-1, the Attorney General can prosecute cases attempting to abate nuisances in the state’s name.

An Example of Public Nuisance in Environmental Litigation

Back in 2018, Rhode Island’s then-Attorney General  sued various fossil fuel companies including BP, Shell, and ExxonMobil in state Superior Court for their actions. These actions allegedly exacerbated climate change. The state’s lawsuit was based first on public nuisance, as well as various other claims. The complaint alleged that the nuisance was created by the companies’ failure to disclose the harms associated with their operations. Also, the Attorney General alleged that the companies either knew or should have known of these harms. Several other states and/or municipalities have filed similar environmental litigation complaints elsewhere.

At the federal level, several states’ (including Rhode Island) environmental litigation which alleged public nuisance lost. The Supreme Court determined that in federal cases, common law claims like public nuisance are preempted in federal cases by statutes such as Clean Air Act. It was this environmental litigation, American Electric Power Co., Inc. v. Connecticut, that likely prompted the filings in state courts.

For their part, the companies tried removing the case to federal court by arguing that the lawsuit raises federal law questions. The U.S. District Court for the District of Rhode Island granted the state’s motion. However, the court remanded the case back into state court by holding that the state law claims are not completely preempted by federal law (like the Clean Air Act). On appeal to the U.S. Court of Appeals for the First Circuit, the fossil fuel companies were dismayed by a holding in favor of the state. This meant that the case could continue in the state Superior Court. A state court decision could maintain the status quo or potentially alter environmental litigation over these types of issues across the country.

Look to our blog for any updates on the case described above and as always, for any questions on environmental or property law applications of the nuisance doctrine, reach out to us today. We are available by email and phone at 401.477.0023.

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