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.
