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Court Dismisses Global Warming Nuisance Suit on Political Question Grounds

Beveridge & Diamond, P.C., September 20, 2007

On September 17, 2007, a federal court in San Francisco dismissed the California Attorney General’s (“AG”) public nuisance lawsuit against six large automakers (General Motors, Ford, Daimler Chrysler, Toyota, Honda, and Nissan).  The AG had alleged that the greenhouse gas emissions from the defendants’ products sold in California have created and contribute to the nuisance of global warming.  California v. Gen. Motors Corp., No. 3:06 CV 5755 MJJ (N.D. Cal. Sept. 17, 2007).  With this decision following closely on a Mississippi federal court’s dismissal of a massive global warming tort suit brought by Gulf Coast property owners, plaintiffs’ climate change lawsuits have received two major setbacks in as many weeks.  But two decisions do not necessarily make a trend.

Last September, then-California AG Bill Lockyer filed the automakers suit, asserting federal and state common law nuisance claims based on allegations that the automakers produce over twenty percent of human-generated carbon dioxide emissions in the United States, and over thirty percent of such emissions in California.  The AG sought monetary damages, attorneys’ fees, and declaratory judgment for future monetary expenses and damages incurred by California in connection with global warming.  The AG did not seek injunctive relief, as did the AGs of California and other states that earlier had brought a similar global warming public nuisance lawsuit in New York against several utility companies.  See Connecticut v. Am. Elec. Co., Inc. (“AEP”), 406 F. Supp. 2d (S.D.N.Y. 2005) (appeal pending before the Second Circuit).

In a twenty-four page decision that tracked the earlier AEP decision, Judge Martin Jenkins dismissed the AG’s claims against all defendants, ruling that they raised non-justiciable political questions. The Court held that the suit would require it to determine what constitutes an “unreasonable interference with a right common to the general public” in the context of carbon dioxide emissions, a question that “would require the Court to balance the competing interests of reducing global warming emissions and the interests of advancing and preserving economic and industrial development.” California v. Gen. Motors Corp., No. 3:06 CV 5755 at 11 & 12 (citations omitted).  The Court also determined that it did not have a manageable method of discerning the entities creating and contributing to the alleged nuisance, nor did it have standards by which to properly adjudicate the plaintiff’s claim and evaluate damages.  Further, the Court held that such a new and unprecedented federal common law nuisance claim for damages likely would have commerce clause implications as it would affect other states, and it would raise foreign policy issues.

Many commentators have suggested that the Supreme Court’s recent liberalizing of the standing doctrine in Massachusetts v. Environmental Protection Agency, 127 S. Ct. 1438 (2007), would give new life to public nuisance cases brought by states such as this one.  In Mass. v. EPA a group of states, local governments, and private organizations sought review of the EPA’s denial of a rulemaking petition requesting that the EPA regulate carbon dioxide emissions from new motor vehicles.  The Supreme Court held that the plaintiffs had standing to challenge the EPA’s decision and that the EPA had authority to regulate the emissions.  Judge Jenkins here distinguished Mass. v. EPA on procedural grounds:

While the Supreme Court did not expressly address the issue of justiciability, it certainly did not sanction the justiciability of the interstate global warming damages tort claim now before this Court.  Rather, the Supreme Court’s analysis on the issue of standing counsels with convincing force to the contrary. . . .  [A] State has standing to pursue its “procedural right” through administrative channels, and if necessary, to “challenge the rejection of its rulemaking petition as arbitrary and capricious” as did the plaintiffs in Massachusetts.  Unlike the procedural posture of Massachusetts, the current case is not before the Court by way of an administrative challenge to an [sic] EPA’s decision, but rather as an interstate global warming damages tort claim.  Plaintiff’s argument essentially ignores this procedural distinction.

California v. Gen. Motors Corp., No. 3:06 CV 5755 at 17 (citation and footnote omitted).  In addition to this procedural distinction, Judge Jenkins concluded that the Supreme Court’s holdings with respect to standing and the reach of the EPA’s regulatory authority supported his conclusion that initial policy decisions concerning the authority and standards for carbon dioxide emissions should only be made by the political branches of government, while preserving judicial review of those determinations.

This decision does not indicate an end to such litigation though.  The Court here expressly noted that the AG was free to re-file in State court to pursue its public nuisance claim under the common law of California.  The California AG also may choose to appeal to the Ninth Circuit Court of Appeals, just as the AGs in the AEP case did (now pending before the Second Circuit) and just as the plaintiffs in the Comer global warming tort suit Mississippi already have indicated that they will do.  One can safely predict that more plaintiffs, both public and private, will file more climate change lawsuits such as these until definitive appellate decisions are issued or comprehensive legislation enacted.

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