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.
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.
Second Circuit reversal in Connecticut v. American Electric Power enables significant climate change litigation to proceed
In a long-awaited decision, the US Court of Appeals for the Second Circuit has reversed the district court's decision in Connecticut v. American Electric Power Co. (“AEP”), a public nuisance lawsuit filed by eight state attorneys general, the City of New York, and three land trusts against six electric power companies based on greenhouse gas emissions. District Court Judge Loretta Preska originally dismissed the lawsuit on the grounds that it presented non-justiciable political questions, finding that the case required “identification and balancing of economic, environmental, foreign policy, and national security interests” of a “transcendently legislative nature.”
The unanimous two-judge ruling (more on that below) vacated and remanded Judge Preska’s ruling, holding – in a hefty 139 pages – that:
“(1) Plaintiff-Appellants’ claims do not present non-justiciable political questions; (2) Plaintiffs-Appellants have standing to bring their claims; (3) Plaintiffs-Appellants state claims under the federal common law of nuisance; (4) Plaintiffs-Appellants’ claims are not displaced; and (5) the discretionary function exception does not provide Defendant-Appellee Tennessee Valley Authority with immunity from suit.”
The appeal was argued on June 7, 2006 before a three-judge panel that included then-Second Circuit Judge Sonia Sotomayor. The long delay in ruling emerged as a potential issue during Judge Sotomayor’s confirmation process. The decision notes that “[t]he Honorable Sonia Sotomayor, originally a member of the panel, was elevated to the Supreme Court on August 8, 2009. The two remaining members of the panel [Judges McLaughlin and Hall], who are in agreement, have determined the matter.”
In reversing the district court decision, the Second Circuit stated:
“Nowhere in their complaints do plaintiffs ask the court to fashion a comprehensive and far-reaching solution to global climate change, a task that arguably falls within the purview of the political branches. Instead, they seek to limit emissions from six domestic coal-fired electricity plants on the ground that such emissions constitute a public nuisance that they allege has caused, is causing and will continue to cause them injury.”
Plaintiffs complaint seeks abatement of defendant’s carbon dioxide emissions on the grounds that those emissions contribute to global warming, which, plaintiffs allege, constitutes a “public nuisance.” Further analysis of this significant ruling will be posted on the Global Climate Law Blog later today. Prior posts pertaining to this case can be accessed here.
Sotomayor climate change case just one of three stalled global warming appeals
In January we commented on three pending appeals with significant implications for tort-based climate litigation. In Friday’s National Law Journal, Marcia Coyle notes that Supreme Court Nominee Sonia Sotomayor is the presiding judge on the Second Circuit panel that heard the appeal in Connecticut v. American Electric Power Co., Inc. (AEP). In AEP, District Court Judge Loretta Preska dismissed the public nuisance case brought by 8 state attorneys general against 5 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.”
Judge Sotomayor’s Second Circuit panel heard oral argument in AEP in June 2006. While Coyle’s NLJ article described the wait for a decision as a “mystery,” it is noteworthy that appellate decisions are also long awaited in Comer v. Murphy Oil Co. and California v. General Motors Corp., both of which also involved lower court dismissals on political question grounds (among others).
Comer is a putative class action against insurance, oil, coal and chemical companies in which plaintiffs alleged that emissions contributed to climate change and thus magnified adverse weather events, including Hurricane Katrina. Comer was docketed in the Fifth Circuit (07-60756) in September 2007 and the appeal was argued on November 3, 2008.
In California v. General Motors, California sued six of the major automakers for allegedly “creating, and contributing to, an alleged public nuisance – global warming.” The district court dismissed the case in September 2007. The appeal was docketed in October in the Ninth Circuit (07-16908) in October 2007. Briefing was completed in August 2008 and oral argument was scheduled for May 8, 2009, but California requested a six month continuance of the argument which was granted on April 6, 2009.
Links to the decisions and appellate briefs in AEP, Comer and General Motors can be found in our earlier post on pending appeals.
In the time these cases have been pending, we have seen a Supreme Court decision that considered EPA’s authority to regulate greenhouse gas emissions, a change in administrations, a changing legislative and regulatory landscape on climate issues (including a proposed EPA endangerment finding), and a change in US involvement in international climate discussions. But with all this change, the “identification and balancing of economic, environmental, foreign policy, and national security interests” described by Judge Preska still looms on a global scale.
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
International climate discussions and the political question defense
The first three major tort-based climate change lawsuits against alleged greenhouse gas emitters were dismissed in part because they raised non-justiciable political questions (all three cases are currently on appeal). For example, the district court in Conn. v. Am. Elec. Power Co., Inc. rejected a public nuisance case brought by 8 state attorneys general against 5 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.”
Recent events offer added support for advocates of the political question defense in climate-based tort litigation:
- A report submitted to the G8 by Tony Blair in advance of last week’s G8 summit (“Breaking the Deadlock: A Global Deal for our Low Carbon Future”) identified the significant hurdles in crafting national and international approaches to greenhouse gas emissions: “Given the complexity of the issues involved, the imprecision of much of the data, and the extraordinarily tricky interplay between the political, the technical and the organisational, answering the question of ‘how?’ is as difficult as any the international community has grappled with since the design of the post-war Bretton Woods economic institutions.”
- The same report later states: “When negotiators sit down in Copenhagen in December 2009, they will face one of the most formidable political challenges in recent history. They must build on the strengths, as well as address the weaknesses of the Kyoto Protocol, to create a successor treaty that will be agreed to, ratified, and enacted by 191 countries to take firm and decisive joint action on climate change. That is why this year’s G8, under the leadership of Japan, is so important.”
- Commentators noted that the G8’s announcement of a goal of a 50% reduction in Greenhouse Gases by 2050 leaves most of the tough questions unanswered, while developing countries rejected the G8 goal. In DOT EARTH, Andy Revkin posted an annotated analysis of the political machinations involved in the G8 climate declaration and the joint statement from established and emerging economies a day later.
- EPA’s Advanced Notice of Proposed Rulemaking, “Regulating Greenhouse Gas Emissions Under the Clean Air Act” (July 11, 2008), notes an active debate within the Executive and Legislative branches about how to regulate greenhouse gas emissions: “The implications of a decision to regulate GHGs under the Act are so far-reaching that a number of other federal agencies have offered critical comments and raised serious questions during interagency review of EPA’s ANPR. Rather than attempt to forge a consensus on matters of great complexity, controversy, and active legislative debate, the Administrator has decided to publish the views of other agencies and to seek comment on the full range of issues that they raise.”
