Two Recent "Climate Change" Cases Ended

Two recent decisions continue the trend against plaintiffs in the climate change/public nuisance area. The U.S. Supreme Court earlier this week declined the request by an Alaskan fishing village to overturn a lower court ruling that the Clean Air Act preempts a federal common law claim of public nuisance attributed to so-called global warming and climate change.  See Native Village of Kivalina v. ExxonMobil Corp., No. 12—1072 (cert. denied 5/20/13).

We have posted on this case before.  The U.S. Court of Appeals for the Ninth Circuit held in 2012 that the Clean Air Act, and Environmental Protection Agency regulatory actions taken under the statute, displace the common law claim that various energy producing companies should be liable for the cost of relocating the village to avoid flooding and coastal erosion.  The Ninth Circuit ruling relied on the Supreme Court's prior decision in American Electric Power Co. Inc. v. Connecticut, 131 S.Ct 2527 (2011), dealing with the possibility of injunctive relief; plaintiffs here failed in their petition to the Supreme Court seeking a ruling that the federal statute does not displace common law claims for damages.

The battle lines may now shift to state common law claims against various entities over greenhouse gas emissions.  Even in state court, plaintiffs will likely have difficulty showing that a defendant's actions caused any alleged climate changes, and that the changes somehow were the proximate cause of the damages alleged -- and then how to apportion damages in light of any others who might be similarly situated to named defendants.  Any such battle at the state level risks creation of a hodgepodge of decisions throughout the country about what constitutes a nuisance in this area and about what gas emission levels are or are not tortious.  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.

In the other recent climate change suit, the Fifth Circuit affirmed earlier this month that the doctrine of res judicata barred a proposed class action claim for alleged global warming-related damage to property after Hurricane Katrina. See Comer v. Murphy Oil USA Inc., No. 12-60291 (5th Cir. 5/14/13). We had posted on this one before also.  Plaintiffs alleged that the defendants' emissions had contributed to global warming, which somehow raised the temperature of the ocean, which somehow made hurricanes more powerful, which caused Hurricane Katrina to be more destructive to plaintiffs' property. After exhausting various unsuccessful complex appeals, the plaintiffs filed a new case with many of the same allegations. The lower court had earlier held that plaintiffs lacked standing, which barred this case. The district court also noted issues (again) with the statute of limitations; the political question doctrine; and on the merits. The Fifth Circuit heard oral arguments on the appeal of the dismissal of the second case, and affirmed that the earlier decision was final for the purposes of res judicata.


Ninth Circuit Hears Oral Argument in Climate Change Case

The Ninth Circuit recently heard oral argument in a potentially significant case raising climate change issues.  See Kivalina v. Exxon Mobil Corp., No. 09-17490 (9th Cir.)(oral argument  11/28/11).

We have posted on this case before, in which the village of about 400 people 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 requires 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 the 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.

After the District Court dismissed the case, 663 F. Supp. 2d 863 (N.D. Cal. 2009), the U.S. Supreme Court rejected a global warming case brought by a number of states and land trusts that sought injunctive relief against utilities under the Clean Air Act.  See American Electric Power Co. v. Connecticut, 131 S. Ct. 2527 (2011).  The Kivalina case is potentially significant as one of the first to apply and interpret the Supreme Court decision limiting climate change lawsuits under federal common law.

The plaintiffs in Kivalina argue that the AEP decision focused exclusively on injunctive relief and did not address damage claims under federal common law. Kivalina does not seek to set emissions caps. It seeks damages, they argued.  But that reading of the decision may overstate the importance of that fact; the Court focused on the issue of injunctive relief arguably because that was what was being sought by the states and land trusts.  Defendants argued that displacement of the federal common law applies to both injunctive and damages remedies.  When Congress crafted the regulatory framework establishing the Clean Air Act, it did not provide for any compensatory relief to an allegedly injured private party. Accordingly, a damages remedy should also be displaced.  Recognizing the nuisance theory in this context would enable a federal judge to substitute a different balancing of interests from the one made by the EPA, to which Congress assigned this function.