Climate Change Litigation Likely To Continue To Heat Up in 2010

January 8, 2010
Client Alert Newsletter Forecast 2010

In the latter half of 2009, two federal appeals courts issued decisions that could signal a new openness in the federal courts to common law tort claims related to climate change. These decisions, issued by the Courts of Appeals for the Second and Fifth Circuits, focused primarily on the threshold issues of standing and justiciability. In the Second Circuit case, Connecticut v. American Electric Power Company Inc. ("AEP"), eight states, New York City and three private not-for-profit land trusts asserted federal common law nuisance claims against five electric power producers, seeking an injunction to cap the defendants’ greenhouse gas emissions. The district court dismissed the case, finding that it raised political questions not suitable for judicial resolution; but the Second Circuit reversed, holding that the political question doctrine did not bar the case and that the plaintiffs had standing to assert federal common law nuisance claims. The Fifth Circuit case, Comer v. Murphy Oil, involved a class of private Gulf Coast landowners who sought damages under state common law from a number of energy and petrochemical companies, alleging that the defendants contributed to global warming, which in turn increased the severity of Hurricane Katrina and thereby caused plaintiffs to suffer property damage. As in AEP, the district court dismissed the case, but a unanimous panel of the Fifth Circuit reversed in part, concluding that the plaintiffs had standing to assert state common law nuisance, trespass and negligence claims and that such claims did not raise non-justiciable political questions.

Together, these decisions – which involved both governmental and private plaintiffs seeking both injunctive relief and monetary damages – suggest that the federal courts may permit a wide variety of plaintiffs to bring climate change related claims. However, divisions remain within the federal courts regarding the application of the standing and political question doctrines to such claims, and they may ultimately be settled only by intervention of the Supreme Court. In fact, despite the unanimous panel decision permitting the plaintiffs' claims, the Fifth Circuit recently granted a motion by the defendants in Comer for rehearing en banc, and oral argument before the entire Court is scheduled for May 2010. Moreover, shortly after the decision in AEP, the District Court for the Northern District of California – like every other district court presented with climate change related tort claims – dismissed a case filed by a coastal Alaskan Native American community against twenty-four energy companies, in which the plaintiffs sought damages for coastal erosion allegedly caused by global warming. The District Court's opinion in that case, Native Village of Kivalina v. ExxonMobil Corp., sharply disagreed with the reasoning of the Second Circuit in AEP. The District Court concluded that the plaintiffs' claims raised a non-justiciable political question because there exist no manageable standards to guide resolution of the case, which would require the court to make a policy determination about the benefits and costs of the defendants' conduct that should be left to Congress and the President. The District Court also concluded that the plaintiffs lacked standing, finding that the highly attenuated chain of events between the defendants' greenhouse gas emissions and the plaintiffs' alleged injuries was an insufficient basis to support the suit.

Beyond this continuing disagreement among the federal courts on the threshold issues of standing and justiciability, climate change tort claims face a number of other barriers. Although it did not reach the merits of the case, the Fifth Circuit’s panel opinion in Comer expressed skepticism that the plaintiffs would be able to prove that the greenhouse gas emissions of the defendants caused their alleged injuries. On the other hand, in AEP, the Second Circuit concluded that the plaintiffs could survive a motion to dismiss because they had stated a federal common law public nuisance claim in light of their allegations that the defendants had "unreasonably interfered" with public rights. Accordingly, even if plaintiffs in climate change tort cases face an uphill battle in proving their claims on the merits, they may be able to survive initial motion practice and enter into discovery.

Additionally, federal legislation or regulation of greenhouse gas emissions may eventually displace or preempt climate change related tort claims. Indeed, the Second Circuit decision in AEP concluded that federal common law nuisance claims were currently not displaced by federal statutory or regulatory law, but it also expressly left open the possibility that new statutory or regulatory initiatives could bar federal common law claims in the future. On the other hand, it is less clear that state common law claims, like those at issue in Comer, would be preempted by future federal climate-change-related statutes or regulations. For example, the Clean Air Act preempts only limited aspects of state law, and the cap-and-trade legislation passed by the House of Representatives in 2009 similarly limits preemption of state law to certain state-administered cap-and-trade programs.

In sum, the past year saw a possible sea-change in the receptivity of the federal courts to common law tort claims related to global warming. Although the plaintiffs in these cases still face multiple obstacles, especially proving that any specific defendant's greenhouse gas emissions caused their injuries, these types of claims will probably only increase in light of the decisions in AEP and Comer. Indeed, climate-change-related tort claims, particularly those brought pursuant to state law, may survive any future federal regulation of greenhouse gas emissions, and they therefore may remain an important part of the legal landscape for quite some time.