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.


Cameras in the Supreme Court?

While we at MassTortDefense usually focus on the results of appellate advocacy, earlier this  week saw an interesting debate about a process issue: whether the  U.S. Supreme Court  should be required to televise oral arguments.

Attorneys and judges with strong views on putting cameras in the high court  testified at a hearing before the U.S. Senate Judiciary Committee on Tuesday.  Speakers included The Honorable Mark Cady, Chief Justice of the Iowa Supreme Court, and The Honorable Anthony Scirica, Chief Judge
United States Court of Appeals for the Third Circuit.

Judge Scirica is not in favor of the Cameras in the Courtroom Act, which was introduced by Sens. Dick Durbin, D-Ill., and Chuck Grassley, R-Iowa.  He addressed three concepts that merit consideration in this discussion—transparency, accessibility, and the respect among the branches that allows each to govern its own deliberations.  He argued that the Court is sufficiently transparent: it explains its decisions in detail. Traditionally this was done through the printed word; now it is done through the electronic word as well, with opinions available on-line as soon as the decision is announced. These opinions constitute are binding precedent on questions of federal law.  Dissenting and concurring opinions by other Justices highlight for the public precisely, and at times quite forcefully, where the members of the Court disagree. Even before a final disposition, where certiorari has been granted, its website links to the lawyers’ briefs so the public may read and download them. Of course, all Court sessions have always been open to the public. But the Court now provides same-day transcripts of oral arguments on its website.

Judge Scirica noted how some lower court judges feel that televisions in the court disrupt courtroom proceedings at least to some extent, while others believe it makes lawyers more theatrical (is that possible?).  Others suggested it may cause judges to alter their questioning during arguments. Many district court judges have also expressed concern over cameras’ effect on witnesses and jurors.

Bottom line, he suggested that the complexities of this issue underscore the considerable latitude that should be afforded the Supreme Court in determining its own internal procedures. Determining whether to televise proceedings goes to the heart of how the Court deliberates and conducts its proceedings.

Senator Leahy, however, stated that the time has come for the Supreme Court to voluntarily open their proceedings to the American people. The high court's upcoming review of the Affordable Care Act, is a significant moment in our nation's history and our understanding of our fundamental charter. This decision will affect every one of us in this country. "The American people deserve to know what is being said as it is being said," he urged.  

The publisher of the outstanding SCOTUSblog wryly noted that the Justices are among the few people in Washington not trying to get on television.  He suggested that televising proceedings would ultimately be good for the Supreme Court, but favored the approach of the Sunshine in the Courtroom Act of 2011, a bill he said demonstrates critical respect for the separation of powers by respecting the judiciary’s autonomy in choosing whether to implement cameras for use.

Update on "Climate Change" Litigation -- Vanishing Quorum

Readers may recall my post about the Fifth Circuit granting the petition for rehearing en banc in Comer v. Murphy Oil.  The case involves a lawsuit by property owners against some three dozen oil, coal, and chemical companies, alleging that the defendants' activities contributed to climate change and magnified the effects of Hurricane Katrina, and thus exacerbated the damage from the storm. The trial court dismissed the suit on political question and standing grounds.  On appeal, a panel of the 5th Circuit reversed last Fall, finding that the plaintiffs did have standing and that the political question doctrine did not apply.

The defendants filed a petition for rehearing en banc, which was granted, and set the case for oral argument next week.  But, the clerk recently sent a letter noting the cancellation of en banc oral arguments.  Apparently, since the en banc court was constituted, new circumstances have arisen that make it necessary for another judge to recuse, leaving only eight members of the court able to participate in the case. Consequently, said the clerk, the en banc court has lost its quorum. Seven members of the court had previously recused themselves from the case.

Several defendants have filed a motion arguing for a different reading of the rule regarding a quorum, and/or raising the argument that the district court's opinion ought to remain the controlling law of the case, rather than the panel's decision which was vacated by the en banc decision. The court has responded by asking for supplemental briefing on these issues. Specifically, the order invited the parties to address the matter “as they think appropriate” but specifically directed them to analyze the interplay between the following rules and statute in resolving the disposition of the appeal: Fed. R. App. P. 35(a), 28 U.S.C. §46 (c) and (d), Fed. R. App. P. 41 (a) and (d) (1), 5th Cir. Local Rule 41.3, and Fed. R. App. P. 2. The court also instructed the parties that they may consider the rulings of Chrysler Corp. v. United States, 314 U.S. 583 (1941) and North American Co. v. Securities & Exchange Comm’n, 320 U.S. 708 (1943) and the Rule of Necessity.

Presumably, three outcomes are possible:the court decides it actually does have a quorum and thus oral argument is rescheduled; the panel decision is reinstated by default (with an ensuing cert petition to the Supreme Court); or, the district court is affirmed without opinion.

Many observers had predicted that the en banc decision by the 5th Circuit would create a circuit split  with the 2d Circuit decision in Connecticut v. American Electric Power. There, a two-judge panel reversed the lower court dismissing the case on political question grounds, and finding the plaintiffs had standing to assert nuisance claims (with a similar attenuated causation theory).  This presumably would have paved the way for Supreme Court cert review.  Of course, Justice Alito has recused himself in cases involving ExxonMobil due to his ownership of its stock, and  Justice Breyer has recused himself from cases involving BP.  Perhaps Justice Sotomayor would also recuse herself due to her participation in the Connecticut v. American Electric Power case when she was on the Second Circuit.  So any possible Supreme Court review may be complicated also by the recusal and quorum issues.

Stay tuned.  This one is getting even more interesting, if thatis possible.