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October 23, 2009 |
Greenhouse Gas Emissions a Nuisance, Yes or No? In the absence of federal climate change legislation or other federal regulation of greenhouse gases, several private entities have sued large industrial emitters of greenhouse gases under common tort principles, but the courts have diverged about whether to permit the tort claim lawsuits. Three recent cases were decided, but differences in the plaintiffs and the claims prevent divining a long-term trend. On October 16, 2009, the Fifth Circuit Court of Appeals revived a class action lawsuit filed by residents and owners of property along the Mississippi Gulf Coast that alleges that oil, chemical and electric generation companies added to the ferocity of Hurricane Katrina because their emissions contributed to global warming. Comer et al. v. Murphy Oil USA et al., No. 07-60756, 2009 WL 3321493 (5th Cir. Oct. 16, 2009). The claims include, among others, state and federal claims for public and private nuisance, trespass, unjust enrichment, civil conspiracy and fraudulent misrepresentation and concealment. The class seeks money damages for property damage. On September 21, 2009, the Second Circuit Court of Appeals revived a public nuisance lawsuit filed by a coalition of states, New York City and public interest land trusts against electric generation companies alleging that, by emitting greenhouse gases that contribute to global warming, the companies were harming specific elements of the environment in their jurisdictions, the states' economies and public health. State of Connecticut v. American Electric Power Co. Inc. (AEP), No. 05-5104-cv, 05-5119-cv, 2009 WL 2996729 (2nd Cir. Sept. 21, 2009). The plaintiffs are asking for additional air emissions controls. Directly on the heels of the Second Circuit decision, the U.S. District Court of the Northern District of California dismissed a lawsuit on September 30, 2009, brought by the Alaskan village of Kivalina against 24 energy and utility companies. The claims include federal public nuisance and state claims of, among other claims, public and private nuisance. Kivalina, an Inupiat Eskimo village of about 400 people, alleges that the companies' greenhouse gas emissions are leaving the town uninhabitable by eroding the sea ice that protected the Kivalina coastline from fall and winter storms. The Kivalina residents likely must relocate in the near future. Kivalina v. ExxonMobil Corp., No. c 08-1138 SBA, 2009 WL 3326113 (N.D. Cal. Sept. 30, 2009). The plaintiffs in Kivalina are asking for monetary damages of up to $400 million that would allow the inhabitants to move forward with a relocation project. To date, district courts have consistently dismissed the claims at the early motion to dismiss stage while appellate courts have reinstated the claims. The decisional points address whether the plaintiffs have standing and whether the claims present a nonjusticiable political question. As noted above, though, each case is slightly different and the holdings are somewhat distinguishable on these bases. An essential element of standing is that plaintiffs show their injuries are "fairly traceable" to the defendants' emissions. In the Fifth and Second Circuit cases, the courts found that the injuries were sufficiently related to the claims made in the pleadings. The appellate courts have also generally rejected the arguments that: (1) the causal link between emissions and the effects of global warming are too attenuated; and (2) because the industrial sources are among many contributors of harm, their actions are not fairly traceable to the alleged injuries. The Fifth Circuit in Comer adopted the standing analysis followed by the Supreme Court in Massachusetts v. EPA, 549 U.S. 497 (2007), which found that an array of research, historic evidence of change compared to current global conditions, documentation of current conditions, modeling and other evidence supported a plausible link between industrial greenhouse gas emissions and climate change. Both circuit courts emphasized that a defendant's actions need not be the sole cause of an injury but only that the defendant contributes to the kinds of injuries alleged by the plaintiffs. Both circuit courts acknowledged that the plaintiffs will have to support the allegations later in the litigation, but that the allegations, taken as true, supported a claim of traceable injury. The district courts in the two cases cited above as well as the most recent Kivalina court, have consistently found that plaintiffs lack standing because they failed to allege a sufficient causal link between the harm of climate change and the defendants' actions. In Kivalina, the court ruled that the plaintiffs did not show that the "seed" of their injury could be traced to any of the defendants, reasoning that "there is no realistic possibility of tracing any particular alleged effect of global warming to any particular emissions by any specific person, entity, group at any particular point in time." The court further held that plaintiffs had not established a sufficient link because their claim for damages was "dependent on a series of events far removed in space and time from the Defendants' alleged discharge of greenhouse gases." The court noted specifically that the defendants in the AEP case (the Comer case was not yet public) could be directly linked to the areas being harmed, and that the Kivalina plaintiffs made no such showing. A political question, rarely found, is presented when a court feels that it cannot adjudicate a question. By examining the so-called "Baker factors," the court evaluates whether, simply stated, the issue has been constitutionally entrusted to the "political" or "elected" branches of government, or, as the Kivalina court reasoned, requires a value judgment for which "judicially discoverable or manageable standards" are not yet discernable. In each of these three cases, the district courts found that whether plaintiffs could claim injury from global warming presented a nonjusticiable political question. The circuit courts, on the other hand, held that climate change claims do not pose a political question. The circuit courts explained that the defendants failed to show that any of the claims were committed by the Constitution or federal laws to a federal political branch. AEP found that the lower court wrongly read the plaintiffs' claims too broadly as a call for a change in national policy rather than as a request to protect them from immediate harm. The AEP court thus found that the claims were justiciable under federal common law public nuisance principles and so did not pose a political question. The Comer court agreed that the claims presented were neither constitutional nor far removed from discernible legal principles. The Comer court noted that the tort claims were typical state tort claims for which state standards existed to guide the courts. A comparison of the recent decision shows the lower courts would prefer not to deal with tort actions concerning climate change but that circuit courts do not seem to be inclined to let them sideswipe the difficult issue. Assuming the Kivalina case is appealed, the Ninth Circuit will have a chance to review and weigh in on these issues as well. For more information, please contact us. RECENT ENVIRONMENTAL PUBLICATIONS
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