Beveridge & Diamond
 

Circuits Avoid Conflict in Climate Change Nuisance Cases; District Court Diverges

Beveridge & Diamond, P.C., November 13, 2009

Update: The Defendants-Appellees in Connecticut v. American Electric Power filed a petition for panel rehearing or rehearing en banc on November 5, 2009.

Article originally published by Beveridge & Diamond, P.C. on October 22, 2009.

On September 21, the Second Circuit issued its Connecticut v. Am. Elec. Power Co. decision reinstating public nuisance tort actions against private emitters of greenhouse gasses (“GHGs”), holding that they did not present non-justiciable political question or Article III standing problems.  See the Beveridge & Diamond client alert regarding this game-changing decision, available at http://www.bdlaw.com/news-669.html.  We noted there that the case likely would influence several related cases pending in other circuits.  Two of those cases, Native Village of Kivalina v. ExxonMobil Corp., No. CV-08-1138, (N.D. Cal. Sept. 30, 2009) and Comer v. Murphy Oil USA, Inc., et al., No. 07-60756 (5th Cir. Oct. 16, 2009), have since been decided.  This article evaluates those decisions as they relate to Conn. v. AEP and the revival of nuisance lawIn short:

  • In Comer, The Fifth Circuit agreed with the Second Circuit that climate change nuisance claims do not present non-justiciable political questions and that the plaintiffs had Article III standing to bring their nuisance claims.  Comer explicitly found that standing exists for private individuals, affirming Conn. v. AEP’s expansion of the Mass. v. EPA standing doctrine.  Also significant is that Comer concerned a tort suit for damages, whereas the plaintiffs in Conn. v. AEP, a coalition of state and local governments and three land trusts, sought only injunctive relief.
  • In Kivalina, the District Court’s decision squarely conflicts with Conn v. AEP (and Comer).  There, the court found that Article III standing was not present and that the claims presented non-justiciable political questions.  The Kivalina decision acknowledges the Second Circuit’s decision in Conn v. AEP.  With respect to that court’s conclusion that “federal courts are competent to deal with these issues”, it comments, “[t]his Court is not so sanguine.”  Kivalina at 12.
  • Because both cases were decided on the pleadings, neither case resolved the causation issues that likely will present the largest hurdles to plaintiffs seeking to win climate change nuisance actions.  One of the three judges on the Comer panel went as far as to say that if the lower court’s decision had rested on causation grounds he would have affirmed the motion to dismiss.

Comer v. Murphy Oil USA, Inc., et al.

Comer was filed by a group of property owners on the Gulf Coast against energy companies for their alleged contribution to climate change.  The plaintiffs argued that climate change increased the intensity of Hurricane Katrina, which in turn damaged their property.  In a two-page decision, the district court found that the plaintiffs did not have standing and case raised non-justiciable political questions.  See http://www.bdlaw.com/news-219.html for more information about the Comer decision.

The Fifth Circuit panel that reversed was comprised of Judges James L. Dennis, Carl E. Steward, and W. Eugene Davis.  (Judges Dennis and Stewart were appointed by President Clinton, and Judge Davis by President Reagan.)  Judge Dennis authored the opinion, which held that plaintiffs have standing to assert public and private nuisance, negligence and trespass claims against energy companies for damage caused by Hurricane Katrina.  Note that the claims in Comer, unlike in Conn. v. AEP, were based on state common law.  This distinction could become important in the future, as state common law nuisance claims may not be preempted by subsequent federal climate change legislation or EPA regulation of GHGs under the Clean Air Act.

The Comer court applied the Article III “fairly traceable” standard to the standing issue.  It relied on Massachusetts v. EPA, citing the Supreme Court’s observation that “rising ocean temperatures may contribute to the ferocity of hurricanes.”  The Court found that the causal chain in Mass. v. EPA was “virtually identical” to that present in Comer, and that since Mass. v. EPA met the “fairly traceable” standard, the case before it did so as well.

Comer, taken together with Conn. v. AEP, expands the standing doctrine articulated in Mass. v. EPA.  While Mass. v. EPA relied heavily on the parens patriae doctrine to find special standing for State plaintiffs, Comer and Conn. v. AEP found standing for private landowners land trusts, respectively.  These cases thus render irrelevant the parens patriae grounds upon which Mass v. EPA predicated standing, and could allow virtually any plaintiff that can show an injury is “fairly traceable” to climate change to maintain a nuisance suit against an emitter of GHGs.

With regards to the political question doctrine, the Fifth Circuit agreed fully with the Conn. v. AEP decision, stating that on the political question issue “the Second Circuit’s reasoning is fully consistent with ours.”  The Court found that federal courts are fully capable of adjudicating claims involving complicated and wide-ranging environmental issues having previously done so successfully in air and water pollution cases.  Climate change nuisance actions, the Court reasoned, pose no issues which would render the court unable to adjudicate actions brought before it, so it need not dismiss the case on political question problems.

The Fifth Circuit’s endorsement of the holding of the Second Circuit on both the standing and political question issues is significant, as it is generally considered to be more conservative, especially in cases affecting the oil and gas industry.  The unity among these two very different circuits therefore makes it less likely that other circuits will dismiss climate change nuisance suits on political question or standing grounds.  Further, the two decisions jointly indicate that circuits are comfortable expanding the Mass. v. EPA standing doctrine to allow certain kinds of private plaintiffs (NGOs and hurricane victims) to bring climate change actions.  As a result, it is likely that Comer will embolden plaintiffs to file other climate change nuisance suits.

In a further expansion of Mass. v. EPA and Conn. v. AEP, Comer establishes a precedent that plaintiffs may seek compensatory and punitive damages for climate change-related injury, which is likely to encourage lawsuits.  In both of the earlier cases the plaintiffs sought only injunctive relief.  The possibility of monetary damages established by Comer will allow plaintiffs firms to bring climate change nuisance suits under traditional contingency fee arrangements, thus further increasing the likelihood that more such suits will be filed.

Comer does contains language that may provide some comfort to potential defendants in such actions.  The opinion did not rule on causation grounds, and indeed, Judge Davis noted in a special concurrence that he would have affirmed a dismissal on the grounds that the claim lacked proximate cause.  However, since the district court did not rely on a lack of causation, Judge Davis deferred to the panel’s decision not to exercise its discretion to decide the case on grounds not presented.  Causation therefore will continue to be a significant shield for defendants in future climate change nuisance actions.

Native Village of Kivalina v. ExxonMobil Corp.

The Kivalina public nuisance suit was filed by the Alaskan native village of Kivalina in the Northern District of California in 2008 against more than twenty oil and power generation companies.  The plaintiffs alleged that GHGs emitted by the defendants led to a climate change-related sea level rise that was sinking the village and forcing its indigenous residents to relocate.

Judge Saundra Brown Armstrong, appointed by President George H.W. Bush, dismissed the lawsuit on September 30, holding that the plaintiffs claims posed non-justiciable political questions and that the plaintiffs “otherwise lack[ed] standing under Article III of the United States Constitution.”  In so ruling, the Court followed its 2007 decision in People of the State of California v. General Motors Corp., in which Judge Martin Jenkins of the same court (a Clinton appointee) dismissed a public nuisance action against six auto manufacturers that had been brought by a coalition of states and NGOs similar to the ones that had brought the Mass. v. EPA and Conn. v. AEP suits.  See http://www.bdlaw.com/news-220.html for more information about the California v. General Motors Corp. decision.  (Earlier this year the plaintiffs in that case voluntarily dismissed the suit while it was pending before the Ninth Circuit.)

The Kivalina Court expressly departed from Conn. v. AEP, finding that although the Second Circuit concluded that climate change nuisance cases could “be addressed through principled adjudication,” the Northern District of California was “not so sanguine.”  While the Court agreed with the Second Circuit that the case did not present issues of foreign policy committed to another branch of government, it decided that the case could not be adjudicated using the tools available to the court.

In Kivalina Judge Armstrong, as Judge Davis indicated in Comer that he would have done, focused on causation in dismissing the case on political question grounds.  She compared climate change cases to the traditional environmental cases cited by the Second Circuit as precedent for its decision and concluded that causation in those cases was much more straight-forward than in Kivalina.  Courts, she concluded, lacked the tools to decide climate change cases, and thus the political question doctrine applied.

On standing, the Kivalina Court applied the “fairly traceable” standard used in Comer, but unlike in Comer concluded that Kivalina’s injuries were not fairly traceable to GHGs emitted by the defendants.  Here too the Court relied on what it determined was a tenuous causal link to find that plaintiffs lacked standing.

Conclusion

Defendants in Comer and Conn. v. AEP are likely to petition the Fifth and Second Circuits, respectively, for rehearing en banc, relying on the reasoning articulated in Kivalina to support their respective defenses that the plaintiffs’ claims are non-justiciable political questions and that the plaintiffs otherwise lack standing.  As was noted in our previous Conn. v. AEP alert, if rehearing en banc is denied or if the en banc panel should uphold the panel’s decision, it is likely that the plaintiffs would file certiorari petitions to the U.S. Supreme Court.  If en banc rehearing results in a circuit split, the Supreme Court will be more likely to grant certiorari.  Given the politically charged nature of the decisions, however, the Supreme Court may not feel that a circuit split is necessary to take up the matter.  Indeed, in Mass v. EPA, the Supreme Court stated, “[n]otwithstanding . . . the absence of any conflicting decisions, the unusual importance of the underlying issue persuaded us to grant the writ.”

The Village of Kivalina is also certain to appeal the district court’s decision to the Ninth Circuit.  The Ninth Circuit is generally considered to be sympathetic to environmental plaintiffs, and it is entirely possible that the Northern District’s decision will be reversed consistent with Comer and Conn. v. AEP.  Thus, unless the Ninth Circuit rejects the Second and Fifth Circuits on these issues and affirms the district court, the Kivalina decision is unlikely to dampen the revival of nuisance cases that the Conn. v. AEP and Comer decisions likely have unleashed (except perhaps, ironically, in the Northern District of California).

For more information, please contact Nico van Aelstyn at (415) 262-4008, nvanaelstyn@bdlaw.com, or Russ LaMotte at (202) 789-6080, rlamotte@bdlaw.com.  

For a printable PDF of this article, please click here.

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