A Global Nuisance? -- The Big 3 Global Warming Cases and Where They Stand

Connecticut v. AEP

In 2004, eight Northeastern states, counsel for New York City, and three environmental groups filed a complaint in the Southern District of New York accusing a handful of utility companies of creating a public nuisance by operating coal fired power plants that emitted carbon dioxide (CO2) that contributed to worldwide global warming. The plaintiffs sought a court order capping and ratcheting down the defendant utilities future emissions of CO2. In September 2005, the district court dismissed the case, holding that the question of global warming is a nonjusticiable political question and should be addressed by legislation. The plaintiffs appealed to the Second Circuit. Four years later, in September 2009, the Second Circuit reversed, holding that the plaintiffs had standing to bring nuisance claims against the utilities under federal common law and that the claims were not barred by the political question doctrine. In November 2009, the defendants filed a petition for rehearing en banc with the Second Circuit. The motion for rehearing en banc is pending.

Native Village of Kivalina v. ExxonMobil

In February 2008, the Native Village of Kivalina filed suit in the Northern District of California against two dozen oil, power and coal companies. The complaint alleges that the defendants' emission of greenhouse gases has caused or contributed to worldwide global warming that has caused increased temperatures and melted the sea ice adjacent to their village, leaving the village vulnerable to Arctic winter storms. As a result, plaintiffs claim the village has suffered massive erosion and must be relocated, at a cost estimated between $95 and $400 million. In June 2008, all defendants filed motions to dismiss. In October 2009, the district court granted judgment in favor of the defendants and dismissed the case. The court specifically disagreed with the Second Circuit in Connecticut v. AEP, and dismissed the lawsuit on the ground that the case involved a political question more properly decided by the legislative and executive branches. In addition, the court held that the plaintiffs lacked standing. In November 2009, the plaintiffs appealed to the Ninth Circuit. Plaintiffs' opening brief is due March 2010.

Comer v. Murphy Oil

Days after Hurricane Katrina made landfall in 2005, a class action lawsuit was filed on behalf of all Mississippi residents that suffered injury and damage as a result of the Hurricane. The suit was filed in the Southern District of Mississippi against a slew of oil, coal, utility, and chemical companies. The complaint alleges that these defendants: (1) release green house gases (GHGs); (2) that GHGs have caused or contributed to global warming; (3) that global warming caused Hurricane Katrina to form and/or intensify; and (4) that Hurricane Katrina caused damage to the plaintiffs' lives and properties. In August 2007, the district court dismissed the case finding that the plaintiffs lacked standing to sue because they had not shown how any of defendants' actions had caused damage to any particular plaintiff. The court also ruled that the plaintiffs' claims raised "political questions" that the court lacked jurisdiction to hear. The plaintiffs appealed to the Fifth Circuit. In October 2009, the Fifth Circuit reversed, holding that the plaintiffs had standing to assert their nuisance, trespass and negligence claims and that none of these claims presented nonjusticiable political questions. In November 2009, the defendants filed a petition for rehearing en banc, which is pending.

Georgia Appeals Court Rules CO2 Not a Regulated Pollutant Under the Clean Air Act

On July 7, 2009, a Georgia appellate court vacated a lower court decision invalidating a permit issued to Longleaf Energy for construction of a coal fired power plant in Early County, Georgia. The appellate court ruled that CO2 is not a regulated pollutant under the Clean Air Act and, therefore, the permit in question need not include controls for CO2. In 2004, Longleaf applied for a preconstruction air quality permit for a proposed power plant. In 2007, the Georgia Environmental Protection Division issued a permit to Longleaf authorizing construction of the plant. The permit did consider or contain emission limitations or controls for CO2. Friends of the Chattahoochee and the Sierra Club challenged the permit. Following an unsuccessful hearing before an administrative law judge, the challengers appealed to the Fulton County Superior Court. The Superior Court agreed with the challengers and ruled that the ALJ erred in affirming the permit. The Superior Court held the permit invalid because it failed to consider, limit or control for CO2. The Georgia Court of Appeals reversed this part of the decision and remanded. The Court of Appeals concluded that no Clean Air Act provision or Georgia statute or regulation controls, limits or regulates CO2 emissions. Accordingly, CO2 is not a regulated pollutant under the Clean Air Act and the permit was not required to contain any CO2 emissions limitations or controls.

Case: PDF File
Posted: September 4, 2009

Supreme Court Rules Shell Oil Company Not Liable under CERCLA

The United States Supreme Court has ruled that Shell Oil Company is not liable under CERCLA as an "arranger" for the delivery of hazardous substances to a contaminated site. Reversing the Ninth Circuit a Court of Appeals, the Supreme Court ruled that Shell did not qualify as an arranger under 42 U. S. C. §9607(a). Beginning in 1960, Brown & Bryant, Inc. (B&B), operated an agricultural chemical distributorship on a parcel of land located in Arvin, California. B&B later expanded onto an adjacent parcel owned by Burlington Northern and Santa Fe Railway Company and Union Pacific Railroad Company ("the Railroads"). As part of its business, B&B purchased D-D, a pesticide, from Shell. The site became contaminated due to spills of various chemicals, including D-D, during transfers and deliveries, and as a result of equipment failures. In 1989, the California Department of Toxic Substances Control and the EPA (collectively, "the Government") cleaned up the site pursuant to the authority granted them by CERCLA, spending over $8 million. The Government sued Shell and the Railroads to recover the cleanup costs. The district court found the Railroads liable because they were owners of a portion of the site, and found Shell liable because it had "arranged for" the disposal of hazardous substances through its sale and delivery of D-D to B&B. Based on numerous factors, the court apportioned the Railroads' liability as 9% of the Governments' total response cost and apportioned Shell's liability as 6% of the total site response cost. On appeal, the Court of Appeals affirmed the district court's finding that Shell could be viewed as an "arranger" under the Act, but reversed the district court's apportionment of the costs, thus, holding the Railroads and Shell jointly liable for all the damages. The Supreme Court reversed the Ninth Circuit. In so doing, the Court held that Shell could not be held liable as an "arranger" under the Act because Shell's mere knowledge of spills and leaks of D-D at the site provided insufficient evidence to conclude that it "arranged for" disposal of hazardous substances in light of the fact that it took numerous steps to encourage distributors of its product to reduce the likelihood of spills. Moreover, the Supreme Court reversed the Court of Appeals rejection of the district court's cost apportionment, holding that relying on the percentage of the total area of the facility that was owned by the Railroads, the duration of B&B's business divided by the term of the Railroads' lease, and the court's determination that only two polluting chemicals (not D-D) spilled on the leased parcel required remediation and that those chemicals were responsible for roughly two-thirds of the remediable site contamination, provided a reasonable basis for the 9% apportionment of the clean up cost to the Railroads.

Case: PDF File
Posted: May 12, 2009

North Carolina Judge Orders TVA to Install Pollution Controls on Coal-Fired Plants in Tennessee and Alabama

On January 13, 2009, Judge Lacy Thornburg of the United States District Court for the Western District of North Carolina, issued a decision, ordering the Tennessee Valley Authority ("TVA") to install additional pollution controls on four of its coal fired power plants located in Tennessee and Alabama. The case was brought by North Carolina's Attorney General and accused TVA of creating a public nuisance through its emissions in Tennessee, Alabama and Kentucky that drifted into North Carolina. According to North Carolina, these emissions caused and aggravated health problems and adversely impacted North Carolina's environment. Judge Thornburg agreed, in part, finding that four the TVA facilities within 100 miles of the North Carolina border -- Bull Run, Kingston, John Sevier (all of which are located in Eastern Tennessee) and Widows Creek (located in Alabama) -- emitted levels of pollutants which constituted a public nuisance. Judge Thornburg granted North Carolina request for an injunction and ordered TVA to install and operate pollution control measures -- namely, scrubbers and selective catalytic reduction -- to control air emissions from these plants. Judge Thornburg found for TVA with respect to all TVA plants located more than 100 miles from North Carolina.

Case: PDF File
Posted: January 23, 2009

Welcome to the Environmental Litigation and Toxic Torts (“ELTT”) Committee’s home page!  Our Committee provides resources and serves as a network for lawyers who practice or are interested in environmental litigation issues, especially those relating to toxic torts. The Committee monitors developments in the field and identifies those that may be of particular interest to our members.

The ELTT Committee’s officers for 2010-2011 are identified in the “Leadership” box on the right-hand side of this web page. We encourage you to contact any of our officers at any time to ask questions, share information, suggest an idea for a Committee activity or to become involved in any Committee activities.

Below is a brief summary of some of our major activities for the 2010-11 year; additional activities will be announced via the Committee’s List Serve.

Newsletters

The Committee recently published a joint newsletter on agricultural litigation and environmental impact issues. Please click here to view Newsletters. We currently are working on an issue relating to litigation involving the Gulf oil spill. Please contact Alex Basilevsky, our Newsletter Vice Chair, with any article submissions or ideas for a future newsletter article or topic.

Programs

The Committee is organizing programs relating to the Gulf oil spill and other hot topics. Please contact Michael Freeman, our Program-Vice Chair, with any ideas for a future program topic or to help organize a program.

Committee Communications/ List Serve

The primary way that the ELTT Committee disseminates information is via its List Serve, which is distributed to all Committee members. Please feel free to contact the Committee members with any questions or to share information regarding recent developments in the field of environmental litigation and toxic torts by using the “List Serve” link in the “Navigation” bar on the right-hand side of this web page.

Conferences and Meetings

The Committee helps plan programs relevant to environmental litigation and toxic tort issues for Section on Environment, Energy and Resources (“SEER”) meetings, and the meetings provide valuable opportunities to network and stay on top of the latest developments in environmental law. SEER will sponsor the following major meetings in 2011. (Please visit the Section website for an updated monthly program listing.)

Thank you for your membership or interest in the ELTT Committee. Please do not hesitate to contact any of our officers for more information or to get more involved in Committee activities.

The Environmental Litigation and Toxic Torts Committee is one of the largest and most diverse committee in the Section. We are over 900 lawyers strong with members from most every State and several countries. In addition to our geographical diversity, our members represent all sides of the environmental equation. While some committee members regularly represent environmental groups and injured plaintiffs others routinely defend such cases. We also benefit from the participation of several lawyers in academia and others that work for state and federal agencies and law enforcement.

But regardless of what we do and who we represent, we all share a common interest in the subject of environmental and toxic tort litigation. And this committee provides us a wonderful platform to share information and ideas.

The goal of the committee is straightforward. Provide a forum and resources for lawyers interested in environmental and toxic tort litigation. We strive to keep abreast of emerging trends in both substantive and procedural areas and to share those with you. We do this through our webpage, Newsletter, programs we sponsor and our ListServe. While most of the work is done by the committee’s vice chairs, we welcome help and hope you will consider taking a more active role in our committee.

Chair:
Daniel M. Krainin

Vice Chairs:
Committee Newsletters
Alexis P. Basilevsky

Membership
Julia A. Bailey Dulan

Programs
Michael David Freeman

Public Service
Sheila Durant

Technology
Otis McGee, Jr.

The Year in Review
Patrick R. Jacobi

Additional (Committee Newsletters and Programs)
Dawn A. Ellison

Additional (Diversity)
Sheila Durant