Fifth Circuit reverses Comer, joins Second Circuit in approving tort-based climate litigation
In a long-awaited appellate decision in Comer v Murphy Oil, the United States Court of Appeals for the Fifth Circuit on Friday found that tort-based global warming litigation against insurance, oil, coal and chemical companies presents justiciable claims. The Fifth Circuit reversed the district court’s ruling from the bench that plaintiffs lacked Article III standing to bring such claims, and that the tort claims presented non-justiciable political questions. The Fifth Circuit only reversed in part, however, agreeing that plaintiffs’ “unjust enrichment, fraudulent misrepresentation, and civil conspiracy claims must be dismissed for prudential standing reasons.”
On Article III standing, the Fifth Circuit ruled that – for standing purposes – plaintiffs alleged an injury that was sufficiently traceable to alleged conduct of the defendants. The Court noted that Article III traceability is a liberal standard that does not equate to proximate causation (“an indirect causal relationship will suffice”). That distinction is important, because the court’s description of plaintiffs’ claim highlights the significant causation issues that loom on the merits:
“The plaintiffs allege that defendants’ operation of energy, fossil fuels, and chemical industries in the United States caused the emission of greenhouse gasses that contributed to global warming, viz., the increase in global surface air and water temperatures, that in turn caused a rise in sea levels and added to the ferocity of Hurricane Katrina, which combined to destroy the plaintiffs’ private property, as well as public property useful to them.”
The high hurdle that remains on causation was clear from Judge Davis’s special concurrence:
"The defendants argued an alternative basis for dismissal to the district court – that the plaintiffs failed to state a claim under common law. Specifically, the defendants argued to the district court that the plaintiffs failed to allege facts that could establish that the defendant’s actions were a proximate cause of the plaintiffs’ alleged injuries. If it were up to me, I would affirm the district court on this alternative ground."
On the political question doctrine, the Fifth Circuit reversed the district court, finding that “defendants have failed to articulate how any material issue is exclusively committed by the Constitution or federal laws to the federal political branches.” The court effectively treated “exclusive commitment” as a threshold issue, rendering application of the remaining Baker v. Carr standards for identifying non-justiciable political questions unnecessary. Following that conclusion, the court, in a conclusory paragraph, stated that the remaining Baker “formulations do not make the defendants’ arguments for nonjusticiability any more persuasive.”
But the Fifth Circuit’s spare discussion of the remaining Baker factors raises questions given the language of Baker, which does not treat exclusive commitment to the political branches as a threshold factor, just one of many that should be considered. The Kivalina court described the Baker factors as “six independent factors,” and the language of Baker appears to support that analysis (emphasis added):
"It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a function of the separation of powers. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non judicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for nonjusticiability on the ground of a political question's presence.
For trend-watchers, note that every district court that has considered claims like those in Comer has dismissed those claims as non-justiciable. See Connecticut v. AEP (recently reversed), California v. General Motors (appeal withdrawn), and, most recently, Native Village of Kivalina v. ExxonMobil et al.. The two appellate decisions have reversed. In essence, the judges who would resolve tort-based climate cases do not believe there are judicially manageable standards to reach principled and rational decisions concerning the purported historical duties to emit lower amounts of unregulated greenhouse gases. Yet two appellate courts are saying – without much in the way of specifics – that these claims are judicially manageable.
In Kivalina, the district court directly responded to the Second Circuit ruling in AEP:
"Despite the admitted and significant distinctions between a nuisance claim based on water or air pollution and one, such as the present, based on global warming, neither Plaintiffs nor AEP offers any guidance as to precisely what judicially discoverable and manageable standards are to be employed in resolving the claims at issue. Although federal courts undoubtedly are well suited to resolve new and complex issues and cases, the Court is not persuaded that this is such a case. Plaintiffs’ global warming nuisance claim seeks to impose liability and damages on a scale unlike any prior environmental pollution case cited by Plaintiffs. Those cases do not provide guidance that would enable the Court to reach a resolution of this case in any “reasoned” manner."
We now await the next steps in AEP and Comer and a likely appeal to the Ninth Circuit in Kivalina.
Kivalina global warming litigation dismissed on political question grounds
In a carefully watched case in the Northern District of California, Judge Saundra Brown Armstrong has issued a ruling dismissing the Kivalina climate change lawsuit on grounds that: (1) it raises a non-justiciable political question, and (2) plaintiffs lack Article III standing. In so doing, Judge Brown rejected the recent Second Circuit analysis in Connecticut v. American Electric Power Co., which held that the political question doctrine did not bar nuisance claims against major greenhouse gas emitters.
In the Kivalina case, the Native Village of Kivalina, Alaska filed suit against two dozen energy companies, attempting to recover at least $400 million in damages for public nuisance related to emissions of greenhouse gases that Plaintiffs alleged contributed to global warming and caused the sea level to rise, destroying parts of the village. In addition to the public nuisance claim, Plaintiffs also included novel conspiracy allegations, claiming that the defendants conspired to mislead the public about the causes and effects of global warming through industry-sponsored trade groups.
The Village of Kivalina, located in northwest Alaska, comprises about 1.9 miles and has approximately 399 residents. In this lawsuit, the villagers alleged that global warming caused the melting of Arctic sea ice which formerly protected the village from winter storms, and that the increased pace of the melting ice has caused erosion. The plaintiffs contend that, "if the entire village is not relocated soon, the village will be destroyed." Their complaint alleged that 24 oil, gas and power companies substantially caused this global warming and the resulting damage to the village. Plaintiffs sought hundreds of millions of dollars in damages to compensate the villagers and relocate the village.
On the political question issue, the Court considered the Second Circuit’s recent decision in AEP, which reversed a district court opinion dismissing a similar climate change suit on political grounds. The Second Circuit concluded that political question doctrine did not bar nuisance-based climate change litigation, given the judiciary’s history of dealing with “new and complex problems.” In the Kivalina decision, Judge Armstrong bluntly responded: “This court is not so sanguine. While such principles may provide sufficient guidance in some novel cases, this is not one of them.”
The Kivalina Court went carefully through each of the factors set forth in Baker v Carr, 369 U.S. 186 (1962), which establishes the standard for determining when an issue presents a non-justiciable “political question” that is best left to the executive and/or legislative branches of government.
The Court noted that the cases relied on to support plaintiffs’ claims involved a “discrete number of ‘polluters’ that were identified as causing a specific injury to a specific area.” In contrast, the Kivalina “global warming claim is based on the emission of greenhouse gases from innumerable sources located throughout the world and affecting the entire planet and its atmosphere.” (Emphasis in original.)
The Court also distinguished global warming claims from other nuisance claims based on the long chain of disconnected events from emission to alleged harm (a chain of events that would pose a significant hurdle for plaintiffs on causation where, as in AEP, the initial claims survive a motion to dismiss):
“[T]he harm from global warming involves a series of events disconnected from the discharge itself. In a global warming scenario, emitted greenhouse gases combine with other gases in the atmosphere which in turn results in the planet retaining heat, which in turn causes the ice caps to melt and the oceans to rise, which in turn causes the Arctic sea ice to melt, which in turn allegedly renders Kivalina vulnerable to erosion and deterioration resulting from winter storms.”
At bottom, the Court was unable to discern “judicially discoverable and manageable standards” to apply to plaintiffs’ claims, and noted that AEP, despite its holding, provided no guidance in this area. The Court concluded that “the allocation of fault—and cost—of global warming is a matter appropriately left for determination by the executive or legislative branch in the first instance.”
The Court separately found that plaintiffs lacked Article III standing given the “attenuated sequence of events” alleged in the complaint, and the inability to trace harm to a particular defendant’s emissions. The Court reasoned that, in this context, a discharge standing alone is insufficient to create a fairly traceable injury for Article III purposes.
The decision will likely be appealed to the Ninth Circuit Court of Appeals. Meanwhile, we still await a Fifth Circuit ruling in the appeal of the dismissal on justiciability grounds in Comer v. Murphy Oil, as well as the next steps in the AEP case following the Second Circuit’s reversal.
What's Next in Connecticut v. AEP? Causation?
The Second Circuit's decision remanding Connecticut v. American Electric Power Co. (see previous post) to the district court raises the specter of future causation battles. Notably, the Second Circuit relied heavily on statements of regulatory bodies on the question of causation. But this issue looms as a large hurdle for plaintiffs in AEP. For an analysis of the complex causation issues likely to arise in this case, check out "Are Regulatory Findings Admissible Evidence?" (Litigation Magazine, Spring 2008), which evaluates the causation question using climate litigation as an example.
Plaintiff's lawyer predicts "massive" climate change litigation; proving causation remains challenging
Australia’s Sydney Morning Herald recently published an interview with Gerald Maples, the lead plaintiff’s attorney in Comer v. Murphy Oil. In Comer, fourteen individuals filed a class action lawsuit against insurance, oil, coal and chemical companies seeking relief for property damages resulting from Hurricane Katrina, alleging that defendants’ emissions contributed to climate change and thus magnified adverse weather events, including Hurricane Katrina. The district court dismissed the Comer case on constitutional standing and political question grounds. The interview provides interesting insight into the case, the complaint, the plaintiff’s views on causation, and possible future climate litigation against private parties and the government.
In the interview, Maples declares the scientific debate about climate change “over” – relying on the Intergovernmental Panel on Climate Change‘s conclusion that the emission of greenhouse gases from human activities has resulted in a measurable increase in temperature, which in turn has significant local, national and global health and environmental effects. He asserts that this scientific certainty has driven a shift in litigation defense strategy away from the science to the standing/political question defense. According to Maples “that’s essentially what the ‘standing’ defense is about. It’s too great of an issue for the courts. It has to be handled by the political leaders.”
But as noted in other posts and articles, the regulatory and quasi-regulatory conclusions that climate change is influenced by human activities do not address the specific causation questions that must be addressed in a tort case like Comer, which seeks to hold corporations responsible for damage caused by climate change. The fact that those battles have not occurred in Comer may not represent a shift in defense strategy – those battles have simply been unnecessary because the complaint was dismissed for lack of standing (“the Court finds that Plaintiffs do not have standing to assert claims against Defendants and that Plaintiffs’ claims are non-justiciable pursuant to the political question doctrine”).
The interview cites Maples’ view on proximate cause as follows: “Proximate cause is not simply cause in fact. We know what the cause in fact is – the science has told us that. But proximate cause has to do more with who could have prevented it.” While this definition doesn’t track Black’s Law Dictionary – which uses phrases like “[t]he last negligent act contributory to an injury, without which such injury would not have resulted,” and “[t]he dominant, moving or producing cause” – it does identify clear causation hurdles that the Comer plaintiffs must overcome if the dismissal of their case is reversed. In establishing cause in fact, plaintiffs would have to establish that Hurricane Katrina would not have occurred without defendant’s emissions. In other words, if Comer is reversed, causation looms large as an obstacle to plaintiffs’ success on the merits.
Causation problems notwithstanding, Maples states that, if Comer is reversed, new work done by Oxford University will help make his case and spur “massive litigation”:
It’s been tracked with great precision, as far as what each corporation’s contribution is, and that can now be extrapolated – especially based on some of the work, the computer modelling that’s coming out of Oxford University – that can now be extrapolated to a percentage of fault. It’s fantastic work that’s been done. Apparently it’s even more sophisticated than the work out of the University of Colorado.
They now can model the effect of man-made carbon contributions to the atmosphere, and the contribution that it has to global weather events. A (newspaper) article was sent to me a few weeks ago - it’s worth a story in and of itself probably - because the comment made was that it was going to lead to massive litigation.
While it is not clear what computer modelling Maples refers to, it may be that he is commenting on a “summary report” stating “preliminary findings” of B. Müller, Ch. Ellermann, M. Friman, N. Höhne, and R. Verheyen, entitled Differentiating (Historic) Responsibilities for Climate Change, available on the website of a company called Oxford Climate Policy. This preliminary report does not appear to be the kind of peer reviewed analysis that might support specific causation claims and is in large part focused on the philosophical questions of how responsibility should be shared for addressing climate change on an ongoing basis (not on the question of apportioning liability, based on cause, for climate change in general or specific weather events). Indeed, the report states as much in its conclusion: “The aim of this Report was to put forward and discuss a methodology for the numerical differentiations of responsibilities for climate change as opposed to calculating causal contributions to climate change.”
Still, Maples predicts “massive litigation” in the future from “big farming interests” who suffer droughts, to “communities ravaged by wildfires,” to “ski resorts that have no snow.” Maples says that the strategic model for the litigation will be based on tobacco litigation: “What’s good about the approach that I’m taking is that the tobacco litigation – and before that the asbestos litigation – demonstrates that one case can cause a gigantic litigation problem for corporations. It’s pretty much accepted history that asbestos and tobacco are the role models for climate change litigation now.”
Human rights-based climate change litigation - a new tool for environmental advocates?
A January 15 UN report on the relationship between climate change and human rights has concluded that while, in theory, global warming may infringe on certain fundamental human rights, individual human rights-based climate lawsuits are not likely to be successful. Nonetheless, environmental advocates may soon be taking up these issues in the courtroom, in part because litigation can bring mass public awareness to climate change issues. This increased exposure may apply added pressure to shape government policy, but is climate change an issue for courts to address?
There are three difficulties generally associated with litigation based on climate change: 1) it is almost impossible to establish a link between the named defendant, usually a State actor, and the alleged injury; 2) it is equally difficult to prove that global warming directly caused the harm; and 3) human rights based actions focus on completed harms, while the harms associated with global warming are usually based in the future. (See Article: “Are Regulatory Findings Admissible Evidence?” discussing issues of causation in climate change lawsuits)
However difficult in practice, human rights litigation based on climate change seems inevitable, as climate change has become an impetus for litigation in other contexts. Internationally, several companies are facing litigation for allegedly causing harm through environmentally unfriendly activities. In Australia, environmental groups lodged a complaint against a company that used the term “clean coal” to describe its power plant. Shell and ExxonMobil are among the defendants in a case in Nigeria that is attempting to stop the use of gas flaring. In the first European climate change litigation, environmental groups in Germany are attempting to compel the government to disclose its contributions to a credit agency that supports projects that allegedly increase greenhouse gas emissions. Canadian environmental groups have sued the Canadian government for inadequately complying with Kyoto. These actions have brought international attention to global climate change issues.
Even if human-rights based climate litigation ultimately fails, it will be a useful tool for environmental advocates who have the resources to bring these actions. According to an International Council on Human Rights report on climate change and human rights, “[l]awsuits draw attention to harmful effects that might otherwise remain below the public radar, put a name and face to the otherwise abstract suffering of individuals and provide impetus and expression to those most affected by the harms of climate change.”
While climate change law may add a new chapter, the story of human rights and the environment is an old one. The UN’s 1972 Stockholm Declaration recognized the “intrinsic link” between human rights and the environment. More recently, a joint seminar between the Office of the High Commissioner on Human Rights (“OHCHR”) and the United Nations Environment Programme (“UNEP”) in 2002 addressed human rights and the environment, and issued a background paper on the existing environmental jurisprudence of human rights bodies, which discussed the effects of human rights law and the environment on particular groups of people.
Industry lawsuit challenges three-word "Alaska Gap" of Department of Interior rule
Regional Causation Will Be a Key Question
On the same day that it determined under the Endangered Species Act that polar bears were threatened, the Interior Department published an Interim Final Special Rule which in essence provides that, “except in Alaska,” greenhouse gas emitting activities are exempt from the requirement that a Fish and Wildlife Service (FWS) permit be obtained where there may be an “incidental taking" of the threatened species. Five industry groups – American Petroleum Institute, U.S. Chamber of Commerce, National Mining Association and the National Association of Manufacturers – just filed a lawsuit (American Petroleum Institute, et al. v. Kempthorne, et al.) in the United District Court for the District of Columbia challenging that three word exception.
While these groups generally support the interim rule, they challenge the logic behind the Alaska exception given EPA (and other) conclusions that regional emissions do not directly cause regional climate impacts. An excerpt from the complaint (paragraphs 5 and 6) summarizes the lawsuit:
Under the ESA and its accompanying regulations, the “threatened species” designation presumptively triggers Section 9 of the ESA, which would require an FWS permit for activities that constitute an “incidental taking” of the designated species. FWS, however, also determined that climate change is a worldwide phenomenon, resulting from the combination of greenhouse gas emissions across the globe. Accordingly, FWS determined that neither climate change, nor any effect of climate change, can be traced to particular activities in particular locations. On that basis, FWS accompanied its Listing Rule with the 4(d) Rule, which generally exempts greenhouse gas emitting activities from Section 9 requirements to which they might otherwise be subject. . . .
But in sharp contradiction with FWS’s own determination that climate-change-based effects on polar bears cannot be traced to emission activities in any particular location, the 4(d) Rule excludes Alaska from the Section 9 exemption. The Alaska Gap thus exposed Alaska operations to increased permitting burdens and/or the risk of enforcement by Government authorities and citizen suits – risks that operations elsewhere in the United Sates do not face and that are contrary to FWS’s own determinations about the nature and effects of global climate change
The lawsuit will likely draw on support from FWS’s own words, including statements like the following contained in a May 14, 2008 FWS memorandum regarding Expectations for Consultations that Would Emit Greenhouse Gases:
GHG that are projected to be emitted from a facility would not, in and of themselves trigger section 7 consultation for a particular action unless it is established that the emissions from the proposed action cause an indirect effect to listed species or critical habitat. To constitute an indirect effect, the impact to the species must be later in time, must be caused by the proposed action, and must be reasonably certain to occur. The best scientific data available today do not allow us . . . to draw a causal connection between GHG emissions from a given facility and effects posed to listed species or their habitats, nor are there sufficient data to establish that such impacts are reasonably certain to occur.
Unlike public nuisance cases filed to date, where early dismissals on political question and standing grounds prevented the lawsuits from reaching the critical, and complex, issues relating to causation, this litigation should put the question of causation directly into play, requiring an analysis of whether greenhouse gas emissions can be isolated and evaluated on a such a localized basis.
