We posted here recently about proposed “climate change” legislation and how it may affect litigation. Now comes a federal appeals court ruling allowing certain nuisance claims against major greenhouse gas emitters, a decision that may provide an impetus to more so-called climate change litigation. See Connecticut v. American Electric Power Co., 2009 WL 2996729 (2nd Cir. Sept. 21, 2009). Interestingly, this is a two-judge decision as original panel member Judge is now Justice Sotomayor.
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. 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.”
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’ “consensus” ignores that global mean temperature is only one part of climate, and may not be the best metric. Moreover, the most important driver of the greenhouse effect are water vapor and clouds. Carbon dioxide is about 0.038% of the atmosphere, while water in its various forms ranges up to 4% of the atmosphere. Scientists estimate that water accounts for about 90% of the Earth’s greenhouse effect. And humans are responsible for only about 3.4% of carbon dioxide emitted to the atmosphere annually, the rest of it being natural. When plaintiffs talk about the consensus, another major issue is that the “warming” numbers come not from measurements but from computer models — with a huge range of assumptions. One is the so-called multiplier effect which assumes that increasing atmospheric carbon dioxide causes a large increase in water vapor and thus a large rather than small temperature spike.
When thinking about “global climate” changes, we have also been sobered by the fact that humans have been trying to measure the 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, 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 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.
An important aspect of the ruling was that the the activity in Congress and the administrative agencies was not yet far enough along to displace common law relief. Federal common law is a necessary expedient to which federal courts may turn when compelled to consider federal questions which cannot be answered from federal statutes alone. But when Congress addresses a question previously governed by a decision rested on federal common law the need for lawmaking by federal courts disappears. The question whether a previously available federal common-law action has been displaced by federal statutory law involves an assessment of the scope of the legislation and whether the scheme established by Congress addresses the problem formerly governed by federal common law. The court did note that it may happen that new federal laws and new federal regulations may in time pre-empt the field of federal common law of nuisance. (EPA appears to be on the road on the road toward regulating greenhouse gases.) But at least until EPA makes more findings, for the purposes of a displacement analysis the Clean Air Act does not sufficiently regulate greenhouse gas emissions.
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.
The ruling may pave the way for more public nuisance suits, as it appears to enable private, nonprofit entities like the Sierra Club to pursue these cases. Allowing such a claim to proceed to discovery raises the potential stakes for every defendant currently or potentially facing public nuisance liability. And thus defendants may be faced with the difficult choice of working towards legislation or facing more of this kind of litigation.