Supreme Court Hears Oral Argument in Second Circuit "Global Warming" Case

We have posted before about the climate change or so-called global warming litigation. Last week, the Supreme Court heard oral argument in one of the seminal cases in this area, American Electric Power Co. v. Connecticut, No. 10-174 (U.S. certiorari petition granted 12/6/10).

Readers will recall that the issues include whether a cause of action to cap carbon dioxide emissions can be implied under federal common law; and whether claims seeking to cap carbon dioxide emissions based on a court's weighing of the potential risks of climate change against the utility of defendants' conduct can be adjudicated through judicially discoverable and manageable standards, and whether they could ever be resolved without  the policy determinations clearly of a kind judges should not be making. (Justice Sotomayor, on the panel below, was recused.)

Extended time was given. The Court did not seem persuaded by the arguments of the defendants and the Justice Department that the case should be thrown out on procedural  grounds.  But on the merits, there appeared to be much skepticism about how a district court could ever proceed to a final decision in these kinds of cases.  Counsel for plaintiffs, the six states, had great difficulty  describing how to get there from here, how to have a manageable lawsuit against a small group of greenhouse gas emitters (among the billions of sources), and one focused on alleged  emission-reduction technology that they supposedly should have used. Counsel could muster not a single example of a similar suit that had proceeded to resolution.

Justice Ginsburg observed that the relief sought sounds like "the kind of thing EPA does..... You are setting up a District Judge as a kind of ‘super EPA.’”  And the rest of the Court's traditionally liberal wing seemed to suggest that this was an issue for the EPA.  Justice Kagan suggested that the suit overlapped the typical work of regulatory agencies; Justice Breyer asked an interesting hypothetical about whether the trial court could impose a remedy that was in essence a per-ton tax on carbon emissions, and assuming the finding was that this would be cost-effective, it would lead to substitution, it would "actually bring about a world without global warming." Plaintiffs answered in the negative.  But if there is no "power to enter that order, which could be proved to be extremely effective, and least possible harm to the consumer, why does [the court] have the power to enter the order you want?"

Justice Scalia wondered about the slippery slope, and if this suit could proceed against a handful of utilities, why couldn't the states sue every farmer who owned a cow, or every home that emitted from their home HVAC system?

Justice Alito took another approach to the difficulties of the litigation, noting that if a certain reduction in greenhouse gas emissions is ordered, that will increase the cost of electricity by a certain amount, and that will produce certain consequential effects. It will result in the loss of a certain number of jobs; it will mean that consumers will have less money to spend on other products and services; it will mean that some people will not be able to have air conditioning in the summer. That will have health effects on the elderly and people with breathing issues.  "How is the district judge -- what standard does the district judge have to decide those" questions?

Counsel for defendants correctly noted that the states were in essence asking a judge to perform a legislative and regulatory function, and balance a set of issues that is among the most complex, multifaceted, and consequential of any policy issues now before the country.

Chief Justice Roberts observed that a central issue when dealing with global warming is that there are costs and benefits on both sides, and a policy maker has to determine how much to readjust the world economy to address the global warming.  There are inevitable trade-offs. "I think that's a pretty big burden to impose on a district court judge."

Good news for the defendants: none of the eight justices appeared to voice any significant support for the plaintiffs' position.

 

Legislation Proposed to Curb EPA Greenhouse Gas Authority

As we have noted in previous posts, one of the many important questions lurking in the climate change/global warning cases currently being litigated is whether the EPA will be the primary regulator of greenhouse gas emissions or whether private parties will be permitted to go directly to court. Should a single judge set emissions standards for regulated utilities across the country—or, as here, for just that subset of utilities that the plaintiffs have arbitrarily chosen to sue? Judges in subsequent cases could set standards for other utilities or industries, or even conflicting standards for these same utilities. At the sane time, many observers question whether the current EPA regulatory direction offers sufficient protection for the jobs and the still shaky economy.

A number of bills have been introduced that could affect this equation. The Chair of the House Energy and Commerce Committee, Fred Upton (R-Mich.), last week spoke of draft legislation that would prohibit the Environmental Protection Agency from regulating greenhouse gas emissions.  The Energy Tax Prevention Act of 2011 would bar the EPA from regulating the so-called greenhouse gases under the Clean Air Act by precluding the agency from taking into consideration the emission of a greenhouse gas due to concerns regarding possible climate change.

Joining in support of this approach were Sen. James Inhofe (R-Okla.), the highest ranking Republican on the Senate Environment and Public Works Committee, and Rep. Ed Whitfield (R-Ky.), chairman of the House Energy and Commerce Subcommittee on Energy and Power.
Senator Inhofe reportedly plans to introduce a Senate version of the bill soon. 

Already in the Senate, Sen. Jay Rockefeller (D-W.Va.) re-introduced the EPA Regulations Suspension Act of 2011 (S. 231) which would delay for two years EPA's greenhouse gas emissions rules covering stationary sources.  Co-sponsors include Democrats: Sens. James Webb (Va.), Claire McCaskill (Mo.), Tim Johnson (S.D.), Joe Manchin (W.Va.), Ben Nelson (Neb.), and Kent Conrad (N.D.).  Rockefeller's version would apparently continue to allow EPA regulation of vehicle greenhouse gas emissions.  Wyoming Republican Senator John Barrasso introduced a more sweeping Senate bill (S. 228) that would reduce federal authority to regulate such emissions under not just the Clean Air Act, but also the Clean Water Act, the National Environmental Policy Act, and the Endangered Species Act.

The White House announced last year that the President would veto efforts to curb EPA authority over these greenhouse gas emissions. But many have expressed concern that the EPA regulations could hurt job growth, particularly for heavy manufacturing states.
 


 

Supreme Court Agrees to Hear Greenhouse Gas Case

The U.S. Supreme Court announced earlier this month that it will indeed hear the challenge to a court of appeals decision allowing several states to pursue a public nuisance suit against various utilities for their greenhouse gas emissions. See American Electric Power Co. v. Connecticut, No. 10-174 (U.S. certiorari petition granted 12/6/10).

Readers may recall the issues from previous posts.  Two groups of plaintiffs, one consisting of eight states and New York City, and the other consisting of three land trusts, sued six electric power corporations that own and operate fossil-fuel-fired power plants, seeking abatement of defendants' alleged ongoing contributions to the "public nuisance of global warming." Plaintiffs claimed that global warming, to which the defendants allegedly contributed as large emitters of carbon dioxide, is causing, and will continue to cause serious harm affecting human health and natural resources. Plaintiffs brought these actions under the federal common law of nuisance or, in the alternative, state nuisance law, to force defendants to cap and then reduce their carbon dioxide emissions. The district court, 406 F. Supp. 2d 265, 268 (S.D.N.Y. 2005),  correctly held that plaintiffs' claims presented a non-justiciable political question and dismissed the complaints. On appeal, plaintiffs argued that the political question doctrine does not bar adjudication of their claims; that they had standing to assert their claims; that they had properly stated claims under the federal common law of nuisance; and that their claims were not displaced by any federal statutes.

In a lengthy opinion, 582 F.3d 309 (2d Cir. 2009), the court of appeals held that the district court, had erred in dismissing the complaints on political question grounds; that all of plaintiffs had standing; that the federal common law of nuisance governs their claims; that plaintiffs had stated claims under the federal common law of nuisance; that their claims were not displaced. In a very minimalist interpretation of what is needed for standing, the Second Circuit distinguished multiple precedents of the Supreme Court which held that to have standing a plaintiff must allege an injury that is concrete, direct, real, and palpable -- not abstract. Injury must be particularized, personal, individual, distinct, and differentiated -- not generalized or undifferentiated.

AEP and three other power companies filed a petition for writ of certiorari Aug. 2, asking the Supreme Court to review the decision. The federal government (Acting Solicitor General Neal Katyal on behalf of the Tennessee Valley Authority, a government-owned company), urged the Supreme Court to overturn this decision that allowed Connecticut and several other states to move forward in their suit seeking greenhouse gas emissions reductions under a federal common law nuisance theory. A dozen states  joined the Administration, and a variety of amici, in urging the Supreme Court to review the decision by the Second Circuit.

One central issue is whether the EPA will be the primary regulator of greenhouse gas emissions or whether private parties will be permitted to go directly to court.  Should a single judge set emissions standards for regulated utilities across the country—or, as here, for just that subset of utilities that the plaintiffs have arbitrarily chosen to sue?  Judges in subsequent cases could set standards for other utilities or industries, or conflicting standards for these same utilities.
A second issue is whether controlling power plant emissions is a political question beyond the reach of the courts.

Note that Justice Sotomayor was a member of the Second Circuit when it heard oral arguments in Connecticut v. American Electric Power Co.  Thus it appears only eight justices will hear the case.
Justice Anthony Kennedy may turn out to be the pivotal vote in the case, based on his vote in Massachusetts v. EPA, 127 S. Ct. 1438 (2007).  The Supreme Court may not be eager to see a flood of common law litigation against greenhouse gas sources.

  

Update on Greenhouse Gas Emissions Reporting

The White House Office of Management and Budget has reportedly completed its review of the draft final rule to set greenhouse gas emissions reporting requirements for oil and natural gas wells and related equipment, as well as locations that produce fluorinated greenhouse gases. Completion of OMB review is typically the final step before a proposed rule is released by the Environmental Protection Agency for publication.

Readers may recall these rules were proposed in Spring, 2010, and would require oil and natural gas wells and related equipment that emit more than the equivalent of 25,000 metric tons per year of carbon dioxide to report their greenhouse gas emissions. EPA estimates that the proposal would apply to about 3,000 facilities, which would be required to begin collecting data on Jan. 1, 2011.  According to EPA, fluorinated gases account for about 2 percent of U.S. greenhouse gas emissions.

The proposed rule for oil and natural gas systems, like many related rules, seem to impose burdensome testing requirements on natural gas systems rather than calling for use of arguably more cost-effective estimating techniques.  Also controversial is EPA's effort to include smaller facilities by aggregating multiple facilities of a company in a region.

The Nov. 2 elections put Republicans in charge of the House and reduced the Democratic margin in the Senate; this may impact greenhouse gas regulation, and climate change legislation (such as cap and tax) is probably off the table for the next two years. Industry groups may seek to lobby for delay in EPA's greenhouse emissions rules through a variety of techniques, including via the EPA spending bill. Several top House Republicans have been quoted as saying such rules are a priority target.  On the Senate side, Sen. Jay Rockefeller (D-W.Va.) and a few other Democrats have favored a delay in implementing the EPA regulations for two years, so the new math there may also create road blocks.

Another aspect of this is seen in statements, such as those by Rep. Darrell Issa (R-Calif.), who may be in line to chair the House Oversight and Government Reform Committee; he has stated that he will call for oversight hearings on EPA activities, including in this area. Organizations such as the National Association of Manufacturers have argued that if the EPA is allowed to continue forward with an "overreaching agenda" on greenhouse gasses that puts additional and unnecessary burdens on manufacturers and drives up energy costs, it will cause economic harm and instill even more uncertainty into our already fragile economy, and will destroy jobs.

 

U.S. Urges Reversal of 2d Circuit Global Warming Nuisance Decision

The federal government (Acting Solicitor General Neal Katyal on behalf of the Tennessee Valley Authority, a government-owned company), last week urged the Supreme Court to overturn a court of appeals decision that allowed Connecticut and several other states to move forward in their suit seeking greenhouse gas emissions reductions under a federal common law nuisance theory. American Electric Power Co. v. Connecticut, No. 10-174 (U.S., brief filed 8/24/10).

Readers may recall from earlier posts that in Connecticut v. American Electric Power Co., 2009 WL 2996729 (2nd Cir. 9/21/09),  two groups of plaintiffs, one consisting of eight states and New York City, and the other consisting of three land trusts, sued several electric power corporations that own and operate fossil-fuel-fired power plants, seeking abatement of defendants' alleged ongoing contributions to the "public nuisance of global warming." Plaintiffs claimed that global warming, to which the defendants allegedly contributed as large emitters of carbon dioxide, is causing and will continue to cause serious harm affecting human health and natural resources. The plaintiffs' theory is that carbon dioxide acts as a greenhouse gas that traps heat in the earth's atmosphere, and that as a result of this trapped heat, the earth's temperature has risen over the years and will continue to rise in the future. Pointing to an alleged “clear scientific consensus” that global warming has already begun to alter the natural world, plaintiffs predicted that it “will accelerate over the coming decades unless action is taken to reduce emissions of carbon dioxide.”

When thinking about "global climate" changes, MassTortDefense has always been sobered by the fact that humans have been trying to measure temperature consistently only since the1880s, during which time advocates think the world may have warmed by about +0.6 °C -- which is less than the margin of error on our ability to measure the Earth's temperature!

Anyway, plaintiffs brought these actions under the federal common law of nuisance or, in the alternative, state nuisance law, to force defendants to cap and then reduce their carbon dioxide emissions. The district court held that plaintiffs' claims presented a non-justiciable political question and dismissed the complaints. 406 F. Supp. 2d 265.

On appeal to the Second Circuit, plaintiffs argued that the political question doctrine does not bar adjudication of their claims; that they had standing to assert their claims; that they had properly stated claims under the federal common law of nuisance; and that their claims were not displaced by any federal statutes.

In a lengthy opinion, the two judges (Justice, then-Judge Sotomayor had to drop out) held that the district court erred in dismissing the complaints on political question grounds; that all of plaintiffs had standing; that the federal common law of nuisance governs their claims; that plaintiffs had stated claims under the federal common law of nuisance; that their claims were not displaced by other federal law.

In a very minimalist interpretation of what is needed for standing, the Second Circuit distinguished multiple precedents of the Supreme Court which held that to have standing a plaintiff must allege an injury that is concrete, direct, real, and palpable -- not abstract.  Injury must be particularized, personal, individual, distinct, and differentiated -- not generalized or undifferentiated. The Supreme Court has further stated that the asserted injury must be actual or imminent, certainly impending and immediate --not remote, speculative, conjectural, or hypothetical. The court rejected defendants challenge that the contentions of future injury at some unspecified future date are not the kind of “imminent” injury required. The court also gave short shrift to the argument that plaintiffs could neither isolate which alleged harms will be caused by defendants' emissions, nor allege that such emissions would alone cause any future harms.

As we noted here, several defendants have filed a cert petition that raises the important, recurring question whether states and private plaintiffs have standing to seek, and whether federal common law provides authority for courts to impose, a non-statutory, judicially created regime for setting caps on greenhouse gas emissions based on vague and indeterminate nuisance concepts. It also asks the Court to decide whether judges, in addition to Congress and the EPA, may regulate greenhouse gas emissions at the behest of states and/or private parties and, if so, under what standards. Under the Second Circuit's ruling, a single judge could set emissions standards for regulated utilities across the country—or, as here, for just that subset of utilities that the plaintiffs have arbitrarily chosen to sue. Judges in subsequent cases could set different standards for other utilities or industries, or conflicting standards for these same utilities.

While the Second Circuit called this an ordinary tort suit, this litigation seeks to transfer to the judiciary nearly standard-less authority for some of the most important and sensitive economic, energy, and social policy issues presently before the country. Federal nuisance law is neither sufficiently developed nor sufficiently detailed to substitute for actual regulation. Thus, at stake is the financial health and security of numerous sectors of the economy. Indeed, 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. The threat of litigation, and the indeterminate exposure to monetary and injunctive relief that it entails, could substantially impede and alter the future investment decisions and employment levels of all affected industries, and ultimately every sector of the economy.


Now the government brief takes a different approach, asking the Court not to accept the case for full review, but rather to simply vacate the decision and direct the Second Circuit to reconsider two issues: whether the plaintiffs have standing to bring the lawsuit, and whether recent actions by the EPA  to regulate greenhouse gas emissions supplant the reason given by the Second Circuit for allowing the lawsuit to go forward.  Since the initial decision below, EPA has issued final rules establishing reporting requirements for major emitters of greenhouse gases; issued a finding that greenhouse gas emissions from cars and light trucks endanger public health and welfare; and established new greenhouse gas emissions limits for cars and light trucks. In addition, EPA has signed off on a final rule requiring that additional categories of sources begin to track and report greenhouse gas emissions under EPA's earlier GHG reporting rule.  The Second Circuit decision was seemingly predicated on the "now-obsolete conclusion" that EPA had not taken action to regulate carbon-dioxide emissions from stationary sources. 

The TVA brief also argues that  that the lower court should dismiss the case based on “prudential standing,” a narrower ground than the case or controversy argument of the other defendants.


 

Defendants in Second Circuit Climate Change Case Seek Cert

Several electric power companies have asked the Supreme Court to review a Second Circuit ruling that Connecticut and several other states may seek greenhouse gas emissions reductions under a federal common law nuisance claim.  American Electric Power Co. v. Connecticut, No. 10-174 (U.S. 8/2/10). The petition for certiorari was filed by American Electric Power Co., Duke Energy Corp., Southern Co., and Xcel Energy Inc.

Readers may recall that in 2004, two groups of plaintiffs, one consisting of eight states and New York City, and the other consisting of three land trusts, sued six electric power corporations that own and operate fossil-fuel-fired power plants, seeking abatement of defendants' alleged ongoing contributions to the "public nuisance of global warming." Plaintiffs claimed that global warming, to which the defendants allegedly contributed as large emitters of carbon dioxide, is causing, and will continue to cause serious harm affecting human health and natural resources.

Because of the procedural posture (motion to dismiss), the court did not really describe the other side of the story, but readers of MassTortDefense know that change is what the climate is always doing as a result of the planet's orbital eccentricities, axial wobbles, solar brightness changes, cosmic ray flux, and multiple other factors. There are numerous plausible terrestrial drivers of climate changes too. While global warming is a serious topic worthy of scientific study and political discussion, plaintiffs' alleged "consensus" on this issue ignores the fact that global mean temperature is only one part of climate, and may not even be the best metric. Moreover, the most important driver of the greenhouse effect are water vapor and clouds. Carbon dioxide is only about 0.038% of the atmosphere, and humans are responsible for only about 3.4% of carbon dioxide emitted to the atmosphere annually, the rest of it being natural.  When thinking about "global climate" changes, we have to be cognizant of the fact that humans have been trying to measure the temperature consistently only since the1880s, during which time even advocates think the world may have warmed by about +0.6 °C -- which is less than the margin of error on our ability to measure the Earth's temperature. 

Anyway, plaintiffs brought these actions under the federal common law of nuisance or, in the alternative, state nuisance law, to force defendants to cap and then reduce their carbon dioxide emissions. The district court correctly held that plaintiffs' claims presented a non-justiciable political question and dismissed the complaints. On appeal, plaintiffs argued that the political question doctrine does not bar adjudication of their claims; that they had standing to assert their claims; that they had properly stated claims under the federal common law of nuisance; and that their claims were not displaced by any federal statutes.

In a lengthy opinion, the court of appeals held that the district court erred in dismissing the complaints on political question grounds; that all of plaintiffs had standing; that the federal common law of nuisance governs their claims; that plaintiffs had stated claims under the federal common law of nuisance; that their claims were not displaced.  In a very minimalist interpretation of what is needed for standing, the Second Circuit distinguished multiple precedents of the Supreme Court which held that to have standing a plaintiff must allege an injury that is concrete, direct, real, and palpable -- not abstract. Injury must be particularized, personal, individual, distinct, and differentiated -- not generalized or undifferentiated. The Supreme Court has further stated that the asserted injury must be actual or imminent, certainly impending and immediate --not remote, speculative, conjectural, or hypothetical. The court of appeals rejected defendants challenge that these vague contentions of future injury at some unspecified future date are not the kind of “imminent” injury required. The court also gave short shrift to the argument that plaintiffs could neither isolate which alleged harms will be caused by defendants' emissions, nor allege that such emissions would alone cause any future harms. 

This petition raises the important, recurring question whether states and private plaintiffs have standing to seek, and whether federal common law provides authority for courts to impose, a non-statutory, judicially created regime for setting caps on greenhouse gas emissions based on vague and indeterminate nuisance concepts.  It also asks the Court to decide whether judges, in addition to Congress and the EPA, may regulate greenhouse gas emissions at the behest of states and private parties and, if so, under what standards.  Under the Second Circuit's ruling, a single judge could set emissions standards for regulated utilities across the country—or, as here, for just that subset of utilities that the plaintiffs have arbitrarily chosen to sue. Judges in subsequent cases could set different standards for other utilities or industries, or conflicting standards for these same utilities.

While the Second Circuit called this an ordinary tort suit, this litigation seeks to transfer to the judiciary nearly standardless authority for some of the most important and sensitive economic, energy, and social policy issues presently before the country.  Thus, at stake is the financial health and security of numerous sectors of the economy. Indeed, 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. The threat of litigation, and the indeterminate exposure to monetary and injunctive relief that it entails, could substantially impede and alter the future investment decisions and employment levels of all affected industries, and ultimately every sector of the economy.

More Groups Challenge EPA's "Endangerment Finding" in Climate Change Debate

A variety of business groups, including the National Association of Manufacturers (NAM), last week filed a petition in federal court challenging the U.S. EPA's decision to regulate greenhouse gas emissions through the Clean Air Act.  Also petitioning in this latest round of filings are the American Petroleum Institute, the National Petrochemical & Refiners Association, the National Association of Home Builders, the Corn Refiners Association, the Brick Industry Association, the Western States Petroleum Association, and the National Oilseed Processors Association.

The groups are challenging EPA’s "Endangerment Finding" determination, and asserting that EPA hasn't asked the right questions, or sought the right information, and hasn't met the government's burden under the standards set forth in the Clean Air Act.  The endangerment finding was based in large measure on the scientific findings of the U.N. Intergovernmental Panel on Climate Change. The IPCC findings have come under fire since e-mails were disclosed in November which seem to show that some scientists were trying to manipulate the data to falsely show that climate change is occurring.

Raising the slippery slope problem, the petitioners worry that if EPA moves forward and begins regulating stationary sources, it may open the door for them to regulate everything from industrial facilities to farms to even American homes. Such a move would further complicate a permitting process that EPA is not equipped to handle, while increasing costs to the manufacturing sector. According to some published estimates, the “Endangerment Finding” and subsequent regulations will trigger new permitting requirements for more than 6 million stationary sources. These 6 million sources may include 200,000 manufacturing facilities, approximately 20,000 farms, and another 200,000 other sources such as universities, schools and even American homes, impacting every aspect of the U.S. economy. These costly burdens and uncertainty, they observe, will stifle job creation and harm our competitiveness in a global economy.

The organizations note they support a comprehensive climate change policy that achieves real environmental results while also fostering continued economic growth – essential conditions for a healthy manufacturing sector in the United States.  The state of Texas has also joined the list of opponents of the EPA's finding. The U.S. Chamber of Commerce filed a petition already. 

EPA Administrator Lisa Jackson had announced the agency finding back in December that greenhouse gas emissions endanger public health and welfare and that cars and light trucks cause or contribute to the emissions. See 74 Fed. Reg. 66,496.  The agency is reportedly planning to take regulatory action in March, under the Clean Air Act.

The finding responded to a decision in 2007 by the U.S. Supreme Court saying that greenhouse gas emissions fall under the definitions of the Clean Air Act, but that EPA must make a finding on whether they endanger public health and welfare and justify its decision based on science. See Massachusetts v. EPA, 549 U.S. 497 (2007).

 

Federal Inter-agency Task Force Releases Preliminary Test Results On Chinese Drywall

The federal inter-agency task force investigating alleged problems with Chinese-made drywall released initial results of three studies last week, which may impact the MDL litigation. The CPSC, the EPA, HUD, the CDC, and the Agency for Toxic Substance and Disease Registry are members of the task force. Health departments in Florida, Louisiana, and Virginia have also participated in the task force. An executive summary of the studies, and the draft studies themselves are available here.


To date, close to 2000 consumers have contacted the CPSC to report alleged problems in their homes. The primary issues reported are: 1) corrosion, or blackening, of indoor metals, such as electrical components and central air conditioning system evaporator coils; and 2) various health symptoms, including persistent cough, bloody and runny noses, headaches, difficulty in breathing and irritated and itchy eyes and skin. Imported drywall from China came into more widespread use after hurricanes in 2004 and 2005 led to a surge in home reconstruction and caused shortages of North American-made drywall.

In sum, the three studies involved:
(1) Elemental and Chemical Testing: The study of the elemental and chemical composition of drywall samples showed higher concentrations of elemental sulfur and strontium in Chinese drywall than in non-Chinese drywall. The elemental and chemical testing of Chinese and non-Chinese drywall samples was undertaken to characterize the specific chemical composition of the drywall. The results were expected to identify differences between the two sets of drywall that might account for the reported corrosion and health issues. While the studies have discovered certain differences between Chinese and non-Chinese drywall, further studies must be completed, said the report, to determine any nexus between the drywall and the reported health and corrosion issues. The analysis was conducted on 17 samples of drywall collected from warehouses, suppliers and manufacturers. These samples were unpainted and uninstalled.

(2) Chamber Studies: Preliminary results of ongoing testing to detect gases emitted from drywall in laboratory chambers showed higher emissions of total volatile sulfur gases from Chinese than from non-Chinese drywall. The chamber studies, conducted by Lawrence Berkeley National Laboratory, were intended to isolate the chemicals emitted from drywall. From these chamber studies, said the task force, it was possible to isolate the drywall emissions from the interferences of other materials or furnishings in a house that might emit or absorb such emissions. No comprehensive exposure and risk assessment has yet been carried out.

(3) Indoor Air Studies: Indoor air testing of 10 homes in Florida and Louisiana was conducted to identify and measure contaminants and to inform a drywall home indoor air testing protocol. The tests did not detect the presence or found only very limited or occasional indications of sulfur compounds of particular interest to the task force – hydrogen sulfide, carbon disulfide, and carbonyl sulfide. Concentrations of two known irritant compounds, acetaldehyde and
formaldehyde, were detected at concentrations that could exacerbate conditions such as asthma in sensitive populations, but were found in both homes with and without Chinese drywall. The levels of formaldehyde were not unusual for new homes, however, said the report. The results of the air testing in this very small sample of homes was being reported to offer a very preliminary indication of what compounds may be present in the indoor environments of homes in Florida and Louisiana with and without Chinese drywall.


The agencies expect the results of an air-sampling study of 50 homes in late November. An engineering analysis of electrical and fire safety issues is also forthcoming. .A study of long-term corrosion issues, that seeks to simulate decades of exposure and corrosion, will not be completed until June of 2010.

The study follows in the wake of the four-day U.S.-China summit that aimed to reinforce the notion that the United States—specifically the CPSC—will hold accountable importers of products into the United States if their products pose hazards or violate safety standards. The CPSC delegation reportedly discussed drywall safety concerns with Chinese government officials.

The CPSC stressed that this report was preliminary; the findings of each report released today must be considered within the limitations of each study and viewed in the context of the overall drywall investigation, which is still ongoing. While the studies have discovered certain differences between Chinese and non-Chinese drywall, further studies must be completed to determine any nexus between the drywall and the reported health and corrosion issues.
 

"Global Warming" Litigation Update (Part II)

Part two of our update on recent climate change litigation.  In our last post, we discussed the well reasoned decision in Native Village of Kivalina v. ExxonMobil Corp., 2009 WL 3326113 (N.D.Cal. 9/30/09).  We contrasted it with the somewhat startling (2-judge) Second Circuit panel decision in Connecticut v. American Electric Power Co., allowing a group of states and land trusts to proceed with a so-called global warming tort suit.

In another noteworthy recent case, the Fifth Circuit recently held that a group of property owners in Mississippi can proceed with global warming-related claims. See Comer v. Murphy Oil Co., 2009 WL 3321493 (5th Cir. 10/16/09).  A proposed class of thousands of property owners alleged that damage to their Mississippi coastal properties from Hurricane Katrina would not have been as serious had not defendants' climate change conduct intensified the storm. Along with the Second Circuit decision, this opinion represents a clear and dangerous trend within the court of appeals to usurp Congress, warp the traditional nuisance doctrine, and plunge the federal courts into what are essentially political questions.

In Comer, the district court correctly held that tort suits against electric power companies and other alleged large greenhouse gas emitters should not proceed in federal court because climate change, and tort claims based on alleged climate change, is fraught with national political and policy considerations.  The Fifth Circuit reversed, asserting that until Congress, the executive branch, or a federal agency acts more directly on global warming, Mississippi common law tort rules questions posed by the case are justiciable because there is no commitment of those issues exclusively to the political branches of the federal government.  Thus, plaintiffs had demonstrated standing for public and private nuisance, trespass, and negligence claims; the claims were justiciable and did not present a political question. 

The Fifth Circuit in some ways went  further than the Second Circuit, ruling in essence that climate change-related claims are not limited to injunctions being brought by governmental entities or even quasi-public groups like nonprofit land trusts. The Fifth Circuit ruled that private property owners under Mississippi law also may have standing to bring climate change-related nuisance and trespass claims for both property and punitive damages. That holding may propel additional climate change litigation -- if the ruling stands following likely rehearing motions.

The causation allegation here was arguably even more attenuated than the long, convoluted causation chain in other global warming cases; plaintiffs asserted that defendants' greenhouse gases didn't cause but contributed to global warming, which made the waters in the Gulf of Mexico warmer, which didn't create but then made Hurricane Katrina more intense, which then caused their alleged property damage to be worse.  That stands as perhaps the most attenuated, least supportable, causal link in tort history -- the absence of proximate cause as a matter of law.  The concurrence noted this issue, and would have affirmed a dismissal on this basis.  With class certification, expert discovery, Daubert, and summary judgment hurdles to be crossed, it is clear that this causation issue will not soon disappear.

Ironically, the rash of global warming opinions in cases that had been argued long ago may reflect a recognition of the new administration and a changing emissions policy... in turn, reflecting the political nature of the issues. All readers ought to have profound reservations about the notion, inherent in all private climate change litigation, that the tort system is capable of adjudicating rights and responsibilities on the subject of global warming.

The decisions potentially present business interests with difficult choices: proposed regulations from the administration may be onerous and not grounded in good science; but absent federal action, defendants may risk public nuisance liability in the courts on issues that juries cannot begin to handle well.  

Global Warming Litigation Update (Part I)

Today, the first of a couple of posts on the so-called global warming litigation.  We have posted on the climate change litigation before, and here, and we note first that a  federal trial court recently dismissed a global climate change suit filed by Inupiat Eskimos from Kivalina, Alaska against dozens of oil and energy companies. Native Village of Kivalina v. ExxonMobil Corp., 2009 WL 3326113 (N.D.Cal. 9/30/09).

The suit was brought by the village of about 400 people, who alleged that as a result of global warming, the Arctic sea ice that protects the Kivalina coast from storms has been diminished, and that resulting erosion will require relocation of the residents to another village.  (The town of Kivalina is located at the tip of a six-mile-long barrier reef, about 70 miles north of the Arctic Circle on Alaska's northwest coast.) Plaintiffs sought damages under federal common law nuisance, state nuisance, and civil conspiracy theories. They alleged that defendants were a major part of the cause of excessive emissions of carbon dioxide and other greenhouse gases, which plaintiffs claimed are causing global warming.

The defendants properly noted that many of the questions raised by the plaintiffs in this suit were inherently political; there are no traditional judicial standards available to adjudicate such political issues. They also argued that plaintiffs lacked standing under Article III because the injury to the plaintiffs was not “fairly traceable” to the conduct of the defendants. 

Judge Saundra Brown Armstrong of the U.S. District Court for the Northern District of California agreed, finding global warming to be a political issue not appropriate for a federal court to decide. The courts have long indicated that disputes involving political questions lie outside of the Article III jurisdiction of federal courts.  Corrie v. Caterpillar, Inc., 503 F.3d 974, 980 (9th Cir.2007). The political question doctrine serves to prevent the federal courts from intruding unduly on certain policy choices and value judgments that are constitutionally committed to Congress or the executive branch.  Koohi v. United States, 976 F.2d 1328, 1331 (9th Cir.1992).  A non-justiciable political question exists when, to resolve a dispute, the court must make a policy judgment of a legislative nature, rather than resolving the dispute through legal and factual analysis. Courts typically look at three broad factors: (i) Does the issue involve resolution of questions committed by the text of the Constitution to a coordinate branch of Government? (ii) Would resolution of the question demand that a court move beyond areas of judicial expertise? (iii) Do prudential considerations counsel against judicial intervention?

Under the second factor, which was key here, the court concluded that a factfinder would have to weigh, inter alia, the energy-producing alternatives that were available in the past and consider their respective impact on far ranging issues such as their reliability as an energy source, safety considerations and the impact of the different alternatives on consumers and business at every level. The factfinder would then have to weigh the benefits derived from those choices against the risk that increasing greenhouse gases would in turn increase the risk of causing flooding along the coast of a remote Alaskan locale. Plaintiffs ignored this aspect of their claim and otherwise failed to articulate any particular judicially discoverable and manageable standards that would guide a factfinder in rendering a decision that is principled, rational, and based upon reasoned distinctions.

Secondly, plaintiffs conceded they were unable to trace their alleged injuries to any particular defendant.  While they sought to rely on, by analogy, injury concepts under the Clean Water Act, the court concluded that even if the theory were applicable outside the context of a statutory water pollution claim, it is simply inapposite where, as here, plaintiffs have not alleged that even the “seed” of their injury can be traced to any of the defendants. Plaintiffs acknowledged that the genesis of the global warming phenomenon dates back centuries and is a result of the emission of greenhouse gases by a multitude of sources other than the defendants. The complaint further alleges that the level of atmospheric carbon dioxide -- “the most significant greenhouse gas emitted by human activity” -- has been increasing steadily “since the dawn of the industrial revolution in the 18th century, and more than one-third of the increase has occurred since 1980.”  Significantly, the source of the greenhouse gases are undifferentiated and cannot be traced to any particular source, let alone a defendant, given that they rapidly mix in the atmosphere. 

The court thus dismissed the suit for lack of subject matter jurisdiction, both because of the political question, and because the plaintiffs could not prove the companies caused the alleged injury.

The decision is consistent with most prior decisions coming out of the district courts, which generally have viewed these climate change cases as raising fundamentally political judgments.  The decision is a more coherent analysis than the recent, ostensibly conflicting, ruling of the Second Circuit allowing plaintiffs to sue over climate change under federal common law, in Connecticut v. American Electric Power Co., No. 05-5104-cv (2d Cir. 9/21/09).  (It also will be contrasted in our next post with the Fifth Circuit's recent ruling in Comer v. Murphy Oil Co.

The Second Circuit case involved a suit by states and environmental groups against various electric power companies; these plaintiffs made allegations similar to those in the Alaska case, and that defendants were thus harming the environment, the states' economies, and public health.  The appeals court overturned a well-reasoned trial court ruling that the case represented a non-justiciable political question.  

Unlike the Second Circuit, the California district court recognized major distinctions between ordinary pollution cases and planet-wide climate change allegations;  the court was wisely unwilling to confront -- and could not ignore the existence of -- the myriad legal and policy issues relating to imposing liability on a planetary scale. Judge Armstrong disagreed with the appeals court conclusion that traditional water pollution and air pollution nuisance cases provide appropriate guidance in assessing global warming "nuisance" cases.  While a water pollution claim typically involves a discrete, geographically definable waterway, plaintiffs’ global warming claim is based on the emission of greenhouse gases over decades from innumerable sources located throughout the world and supposedly affecting the entire planet.

Fundamentally, such a nuisance claim would require the judiciary to make a policy decision about who should bear the cost of global warming, if it turns out to be a real climatic phenomenon. Though alleging that defendants are responsible for a "substantial portion" of greenhouse gas emissions, plaintiffs also acknowledge in these cases that virtually everyone on Earth is responsible at some level for contributing to such emissions (even you readers). Thus, plaintiffs are in effect asking the courts to make a political judgment that the two dozen defendants named in this action should be the only ones to bear the cost of contributing to global warming.  The Second Circuit, in contrast, in American Electric, tried to draw a highly dubious distinction between a claim seeking a comprehensive solution to global climate change, a task that arguably falls within the purview of the political branches, and a claim "merely" to limit emissions that allegedly constitute a public nuisance -- because the emissions (part of the highly controversial political debate about global warming) are greenhouse gasses and the source of alleged climate change caused by human activity.