Climate Change Litigation: An Overview
By M. Camila Tobon – December 19, 2012
Beginning in 2004, several public and private plaintiffs, likely frustrated with the slow pace or apparent shortcomings of legislative and agency action on the issue of climate change, brought lawsuits against various oil, energy, and auto-manufacturing corporations, arguing that those companies’ contributions to greenhouse-gas emissions constituted a public nuisance. Grounded in common law, these lawsuits sought either injunctive relief or money damages resulting from the effects of climate change. Eight years and four lawsuits later, however, plaintiffs have failed to overcome threshold motion practice. Although climate-change litigation is still pending, the Ninth Circuit’s recent decision in Native Village of Kivalina v. ExxonMobil Corp., which follows the Supreme Court’s 2011 decision in Connecticut v. American Electric Power Co., makes clear that the judiciary views the debate over control of greenhouse-gas emissions as more appropriately before the executive and legislative branches.
The four cases can broadly be viewed as falling into two groups. The first group involves state actors suing corporations for their contributions to greenhouse-gas emissions into the atmosphere. In one case, Connecticut v. American Electric Power Co., the plaintiffs sought injunctive relief—a cap on emissions with subsequent mandated reductions, while in the other case, California v. General Motors Corp., the plaintiffs sought money damages and a declaratory judgment for future expenses in connection with global climate change. The second group includes Comer v. Murphy Oil USA and Native Village of Kivalina v. ExxonMobil Corp., where the plaintiffs sought damages for specific events: Hurricane Katrina and the impending destruction of an Alaskan barrier reef, respectively. The common thread throughout all of the cases is the courts’ reluctance to weigh in on the climate-change debate whether because of a finding that the issues present non-justiciable political questions or because of a finding that congressional action has displaced federal common law.
Connecticut v. American Electric Power Co.
Connecticut v. American Electric Power (AEP) Co. was the first of the climate-change cases. 406 F. Supp. 2d 265 (S.D. NY 2005). In 2004, a group of eight states, one city, and several land trusts sued six companies alleged to be the largest emitters of carbon monoxide in the United States. The plaintiffs in AEP sought a court order requiring the companies to cap greenhouse-gas emissions and then reduce those emissions by 3 percent per year over 10 years. The U.S. District Court for the Southern District of New York dismissed the case after determining that the issue was a non-justiciable political question. In Baker v. Carr, 369 U.S. 186, 198 (1962), the Supreme Court recognized six situations where a non-justiciable political question exists:
(1) a textually demonstrable constitutional commitment of the issue to a coordinate political department; or (2) a lack of judicially discoverable and manageable standards for resolving it; or (3) the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or (4) the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of the government; or (5) an unusual need for unquestioning adherence to a political decision already made; or (6) the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
The court focused on the third factor and explained that to grant the relief requested required a balancing of economic, environmental, foreign-policy, and national-security interests. This, the court concluded, was “transcendently legislative” and therefore non-justiciable.
The Second Circuit disagreed. Conn. v. Am. Elec. Power Co., 582 F.3d 309 (2d Cir. 2009). As to the first Baker factor, the court found no textual commitment in the Constitution that grants the political branches of government with responsibility over carbon-dioxide emissions or other forms of alleged nuisance. As to the second, the court concluded that there are workable standards in prior federal case law and in the Restatement 2d of Torts as it relates to federal common-law nuisance. The court also concluded that as an ordinary tort suit, the concern about the impossibility of deciding the case without an initial policy determination—the third Baker factor—did not apply. As to the last three Baker factors, the court found they were not implicated. The court thus concluded that the district court erred when it dismissed the complaints on the grounds that they presented non-justiciable political questions.
The Supreme Court reversed and remanded, concluding that the Clean Air Act and the Environmental Protection Agency (EPA) actions authorized thereunder displaced any federal common-law right to seek equitable relief. Am. Elec. Power Co. v. Conn., 131 S. Ct. 2527 (2011). The AEP holding followed the Court’s prior holding in the 2007 case of Massachusetts v. EPA, where it concluded that the Clean Air Act authorized federal regulation of greenhouse-gas emissions. The Court recognized that the lawsuit was brought before the EPA initiated efforts to regulate greenhouse-gas emissions, but was not persuaded by the argument that displacement does not occur until after the EPA actually exercises its regulatory authority—in other words, until it actually sets emissions standards. It is enough, the Court concluded, that Congress has delegated to the EPA the decision whether and how to regulate emissions.
California v. General Motors Corp.
Two years after AEP was initially filed, the California attorney general sued several automakers seeking money damages for injuries from their alleged contributions to global warming. Cal. v. Gen. Motors Corp., No. C06-05755, 2007 WL 272681 (N.D. Cal. Sept. 17, 2007). In concluding that the complaint raised non-justiciable political questions, the U.S. District Court for the Northern District of California looked at the first three Baker tests. Citing AEP, the court concluded that the same justiciability concerns of the third Baker factor applied even though this was a suit for money damages instead of injunctive relief. The court went on to conclude that as to the first Baker factor, the case presented a non-justiciable political question because it implicated the political branches’ commitments to interstate commerce and foreign policy as they relate to the defendants’ worldwide sales of automobiles. And the second Baker factor was also triggered because the Court found no guidance to determine what constitutes an unreasonable contribution to the sum of carbon dioxide in the atmosphere. The decision was not appealed.
Comer v. Murphy Oil USA
In 2007, various residents and landowners along the Mississippi Gulf coast filed a lawsuit in federal court based on diversity jurisdiction, asserting state common-law claims against various energy, fossil-fuel, and chemical corporations for harm resulting from the effects of Hurricane Katrina. Comer v. Murphy Oil USA, No. 05-cv-436, 2007 WL 6942285 (S.D. Miss. Aug. 30, 2007). The U.S. District Court for the District of Mississippi concluded that the plaintiffs’ claims were non-justiciable political questions. The Fifth Circuit subsequently reversed, concluding that the plaintiffs’ claims of state common-law public and private nuisance, trespass, and negligence did not present questions that were exclusively committed by law to the legislative or executive branches. Comer v. Murphy Oil USA, 585 F.3d 855, 869 (5th Cir. 2009). The court went on to say that the Baker analysis was not “necessary or properly useful” where the defendants failed to articulate how any material issue had been exclusively committed by the Constitution or federal laws to another branch of government. The court also distinguished the district-court holdings in AEP and General Motors, first, because in its view, those cases were based on a misreading of prior Supreme Court precedent that federal courts in air-pollution cases are required to balance social and economic interests; second, because the application of the political-question doctrine would amount to a de facto preemption of state law; and third, because those cases were unlike Comer in that they were not “damages only” state-law tort suits.
Following the decision reversing dismissal of the state common-law nuisance, trespass, and negligence claims, the Fifth Circuit vacated its prior opinion and granted rehearing en banc. Comer v. Murphy Oil USA, 598 F.3d 208 (5th Cir. 2010). However, before oral argument was set to take place, an additional recusal left only 8 of the 16 judges to re-hear the case, falling one short of the number needed for a quorum. In a subsequent opinion, the Fifth Circuit concluded it could not act and, because its prior decision had been vacated, the district court’s determination stood. Comer v. Murphy Oil USA, 607 F.3d 1049 (5th Cir. 2010). The plaintiffs filed a petition for writ of mandamus with the U.S. Supreme Court seeking reinstatement of their appeal, which was denied. In re Ned Comer, 131 S. Ct. 902 (2011).
A second suit, involving many of the same parties, was filed in 2011 but was dismissed in 2012 on res judicata and collateral-estoppel grounds. Comer v. Murphy Oil USA, 839 F. Supp. 2d 849 (D. Miss. 2012). In “an abundance of caution,” the district court reviewed the merits of the claims under both the political-question doctrine and the issue of congressional displacement of federal common law. In the court’s view, the claims presented non-justiciable political questions based on the second and third Baker factors—no judicially discoverable and manageable standards and the requirement that the court make an initial policy determination. The court also concluded that the entire lawsuit was displaced by the Clean Air Act because the state-law causes of action hinged on a determination that the defendants’ emissions were unreasonable. Citing AEP, the court concluded that although the relief requested there was different (injunctive relief as opposed to money damages), the court was being asked to make the same kind of determination (and in this way previewed the Ninth Circuit’s reasoning in Kivalina). An appeal of this decision is currently pending before the Fifth Circuit. Comer v. Murphy Oil USA, No. 12-60291 (5th Circuit ____).
Native Village of Kivalina v. ExxonMobil Corp.
The Native Village of Kivalina and City of Kivalina, on behalf of 400 residents, brought suit in 2008 against 24 oil, energy, and utility companies. Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863 (N.D. Cal. 2009). The complaint sought damages stemming from the eventual need to relocate the residents of Kivalina at a cost estimated between $95 and $400 million because the defendants’ contribution to global climate change was gradually eroding, and would eventually lead to the destruction of their land. In dismissing the case, the U.S. District Court for the Northern District of California concluded that the second Baker factor precluded judicial consideration of the plaintiffs’ claims because the court found no judicially discoverable and manageable standards. The court also concluded that the third Baker factor militated in favor of dismissal because the allocation of fault (and cost) of global climate change would require a policy determination more appropriately left for the political branches. As to the first Baker factor, which the court also considered, there was no record evidence of an express provision of the Constitution or provision from which an inference could be made that the power to make determinations as to global warming was vested in the executive or legislative branch of government. Therefore, the court concluded the first Baker factor was not implicated.
On review by the Ninth Circuit in Kivalina v. ExxonMobil Corp., No. 09-17490, 2012 U.S. App. LEXIS 19870 (9th Cir. Sept. 21, 2012), the issue was whether the Clean Air Act and EPA action authorized by the act displaced Kivalina’s claims. Citing direct Supreme Court guidance on the issue from AEP, the Ninth Circuit concluded that congressional action, in directly addressing the issue of domestic greenhouse-gas emissions from stationary sources, had displaced common law. The fact that AEP dealt with abatement of emissions while Kivalina sought damages for harm caused by past emissions did not matter because of prior Supreme Court precedent instructing that the type of remedy asserted is not relevant displacement analysis. The Ninth Circuit also concluded that the analysis would not alter because the damage occurred before the EPA acted to establish greenhouse-gas standards and stressed that the touchstone for determining whether the doctrine of displacement applies is congressional, and not executive, action.
Common-Law Public Nuisance
The opinions in AEP and Kivalina clearly halted any potential federal common-law public-nuisance claims for injury from global climate change. However, the issue whether plaintiffs could proceed under state common-law theories of public nuisance has not been finally decided. All four cases included state common-law nuisance claims. In all but Comer, the state-law claims were not directly addressed because the district courts declined to assert jurisdiction over those claims after having determined that the federal-law claims should be dismissed. And in AEP, the Supreme Court specifically left open the question whether state law was preempted:
In light of our holding that the Clean Air Act displaces federal common law, the availability vel non of a state lawsuit depends, inter alia, on the preemptive effect of the federal Act . . . None of the parties have briefed preemption or otherwise addressed the availability of a claim under state nuisance law. We therefore leave the matter open for consideration on remand.
Am. Elec. Power Co., 131 S. Ct. at *2540. Only Comer II directly addressed preemption of state law, and that decision is currently on appeal. Litigation over climate change is far from over, but given this precedent, the issue to watch for will be preemption, which undoubtedly will be of interest in the area of climate change—but could have implications in other areas as well.
Keywords: environmental litigation, climate change, public nuisance, Connecticut v. American Electric Power Co., California v. General Motors Corp., Comer v. Murphy Oil USA, Native Village of Kivalina v. ExxonMobil Corp.
M. Camila Tobon is an associate at Shook Hardy & Bacon in Miami, Florida.