Appeals pending for public nuisance climate change litigation
Appeals are pending in three cases with significant implications for tort-based climate litigation. Connecticut v. American Electric Power Company, Inc.; Comer v. Murphy Oil Co.; and California v. General Motors Corp. – all dismissed in district court on political question grounds – are pending in the Second, Fifth, and Ninth Circuits, respectively. As the legislative and executive branches mobilize to address climate change issues under the Obama administration, activity in the judicial branch may also impact the climate law landscape.
Connecticut v. American Electric Power Company, Inc. (05-05104) (“AEP”) was docketed with the US Court of Appeals for the Second Circuit in September 2005. In AEP, the District Court rejected public nuisance claims brought by eight state Attorneys General against five power companies based on the companies’ greenhouse gas emissions. The court held that the case was non-justiciable because it required “identification and balancing of economic, environmental, foreign policy, and national security interests” of a “transcendently legislative nature.” The appellate briefing was complete in March 2006. Oral argument was held on June 7, 2006. Following argument, plaintiffs and defendants sent letters to the Second Circuit regarding the significance of the Supreme Court’s decision in Massachusetts v. EPA.
Documents:
- Brief of Plaintiff-Appellants
- Brief of Defendant-Appellees AEP and Southern Company
- Brief of Defendant-Appellees Cinergy and Xcel
- Reply Brief of Plaintiff-Appellants
- Brief of Defendant-Appellee TVA
- Reply Brief of Plaintiff-Appellants to TVA
- Southern District of New York Opinion
In Comer v. Murphy Oil Co., fourteen individuals filed a class action lawsuit against insurance, oil, coal and chemical companies seeking relief for property damages resulting from Hurricane Katrina. Plaintiffs alleged 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. Comer v. Murphy Oil USA (07-60756) was docketed in the Fifth Circuit in September 2007 and the appeal was argued on November 3, 2008.
Documents:
In California v. General Motors Corp., California sued six of the major automakers for allegedly “creating, and contributing to, an alleged public nuisance – global warming.” The district court granted defendants motion to dismiss in September 2007. The Court held, among other things, that resolution of the plaintiffs’ claim would require the Court to make an initial policy decision of a kind committed to the political branches of government and was, therefore, not justiciable. The appeal was docketed in the Ninth Circuit (07-16908) in October 2007. Briefing (including citation updates) was completed in August 2008 and oral argument will be scheduled on the next available calendar (i.e., after March 2009). Both sides also filed supplemental briefs following the Supreme Court’s decision in Mass v. EPA.
Documents:
- Brief of Plaintiff-Appellant
- Brief of Defendant-Appellee
- Reply Brief of Plaintiff Appellant
- Supplemental Brief re: Mass v. EPA, Plaintiff-Appellant
- Supplemental Brief re: Mass v. EPA, Defendant-Appellee
- Northern District of California Opinion
Civil conspiracy claim targets political question defense in public nuisance climate suit
While three nuisance-based climate lawsuits have been dismissed by federal district courts because, among other reasons, they raised non-justiciable political questions, plaintiffs in the latest public nuisance case believe that the addition of a civil conspiracy claim will overcome the political question defense.
In a recent radio interview, Steve Susman was asked about the Kivalina litigation, in which he represents plaintiffs alleging that the Alaskan village of Kivalina is sinking as a result of climate change allegedly caused by defendant oil, power and coal companies. The Susman interview supports the conclusion that the conspiracy allegation -- that defendants conspired to mislead the public on the causes and effects of global warming -- was intended to overcome a political question defense: “we are the only case that has a conspiracy allegation, and we think that makes our case different, because courts all the time—there are criminal trials going on throughout this country every week about whether someone participated in a criminal conspiracy. So that's the stuff of which courts are made, to decide whether there was a conspiracy, and did it harm someone.”
Likewise, Matt Pawa, whose firm filed the first climate-based public nuisance claim against power plants, noted that Kivalina “includes a claim that certain defendants conspired to mislead the public about global warming. There were no such conspiracy claims in the other cases. Courts routinely decide such conspiracy claims.”
But the inclusion of a civil conspiracy claim may not be a silver bullet against a political question defense. If the public nuisance claims are non-justiciable (as three district court’s have concluded, all now on appeal), there is a real question of whether the court can decide a stand-alone conspiracy claim. For example, in the public nuisance cases brought by the state of Rhode Island against former manufacturers of lead pigment, the district court dismissed the civil conspiracy claim finding that it “cannot stand in isolation” without an “underlying intentional tort theory.” Rhode Island v. Lead Industries Association, Inc.
